1

 Plaintiff suffers from Arthrogryposis, a syndrome characterized by congenital immobility of most of the

joints, fixed in various postures, with a lack of muscle development and growth. See DORLAND'S ILLUSTRATED MEDICAL

DICTIONARY at 152 (29th ed. 2000).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT PINKERTON §

§

Plaintiff, §

§

VS. § NO. 3-04-CV-2489-B

§

MARGARET SPELLINGS, Secretary, §

U.S. Department of Education, ET AL. §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

Plaintiff Robert Pinkerton has filed a motion to compel discovery in this disability

discrimination and retaliation case brought under the Rehabilitation Act of 1973, as amended, 29

U.S.C. §§ 791(b) & 794. For the reasons stated herein, the motion is granted.

I.

Plaintiff was employed by the U.S. Department of Education ("DOE") as an Equal

Opportunity Specialist, GS 360-12. (Plf. Orig. Compl. at 3, ¶ 4.01). On May 2, 2002, plaintiff was

reprimanded by his supervisors, received a "fail" performance evaluation, and was denied a

promotion. (Id.). Two months later, on July 9, 2002, he was terminated from his position despite

10 years of service as a DOE employee. (Id.). Plaintiff attributes these adverse employment actions

to the fact that he suffers from a physical disability that limits his major life activities, such as typing

and keyboarding.1

 (Id. 3-4, ¶¶ 4.02-4.04, 5.02).

 

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2

 Defendants produced a redacted version of the Harris Report omitting 28 pages.

After this lawsuit was filed, plaintiff confirmed his suspicions that the current leadership in

the Office of Civil Rights ("OCR"), the division where he was employed, had a history of

discriminating and retaliating against disabled employees. This history of discrimination was wellknown to the DOE, as documented by a 1993 management report prepared by the Harris Consulting

Group (the "Harris Report") and a 2001 internal investigation conducted by Mark Levesque, a

former DOE employee (the "Levesque Study"). As part of discovery in this case, plaintiff served

defendants with requests for production seeking, inter alia:

All notes, reports, memoranda, or other documents related to the

investigation and/or inspection by Mark Levesque of the Dallas OCR

Division of the Department of Education; and 

Full and complete copies of all notes, reports, memoranda, or other

documents related to or that refer to the Management Review Report

of the Department of Education Office of Civil Rights, Region VI

conducted by the Harris Consulting Group in approximately

September 1993.

(Plf. Mot., Exh. A, Sec. Req. for Prod. #22; Id., Exh. B, Third Req. for Prod. # 25). Defendants

object that these documents are protected from disclosure by the deliberative process privilege. (Id.,

Exh. C).2

 Plaintiff counters that the privilege does not apply or, alternatively, that relevant

documents should be produced notwithstanding the privilege based on need. The parties have

briefed their respective positions in a Joint Status Report filed on October 18, 2005, and defendants

have tendered the documents to the court for an in camera review. This matter is now ripe for

determination.

II.

The deliberative process privilege protects the decisionmaking process of government

agencies by limiting access to pre-decisional communications "reflecting advisory opinions,

 

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recommendations and deliberations comprising part of a process by which governmental decisions

and policies are formulated." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150, 95 S.Ct. 1504,

1516, 44 L.Ed.2d 29 (1975); see also Skelton v. United States Postal Service, 678 F.2d 35, 38 (5th

Cir. 1982). In order for the privilege to apply, the materials sought to be protected must be predecisional and deliberative in nature. See Sears, Roebuck & Co., 95 S.Ct. at 1516-17. "Predecisional" materials are those generated before the adoption of an agency policy or decision and

prepared to assist the decisionmaker in arriving at the decision. Id. "Deliberative" materials are

those that contain opinions, recommendations, or advice about the formulation of important public

policies. Id. Purely factual materials that do not reflect a deliberative process are not protected. See

Environmental Protection Agency v. Mink, 410 U.S. 73, 90, 93 S.Ct. 827, 837, 35 L.Ed.2d 119

(1973). 

Like all evidentiary privileges, the deliberative process privilege must be narrowly construed.

Greenpeace v. National Marine Fisheries Service, 198 F.R.D. 540, 543 (W.D. Wash. 2000); see also

Mims v. Dallas Co., 230 F.R.D. 479, 484 (N.D. Tex. 2005) (Kaplan, J.) (noting all privileges are

strictly construed). The initial burden is on the party asserting the privilege to show that the

materials at issue are both pre-decisional and deliberative. See Cobell v. Norton, 213 F.R.D. 1, 4

(D. D.C. 2003). Once the elements of the privilege have been met, the burden shifts to the party

seeking discovery to establish that its need for the information outweighs the government's need for

confidentiality. See Scott v. Board of Education of City of East Orange, 219 F.R.D. 333, 335 (D.N.J.

2004); Cobell, 213 F.R.D. at 4.

III.

After reviewing the documents tendered by defendants in camera, as well as the declaration

of Eileen Hanrahan, Acting Director of the OCR Southern Division, the court finds that the Harris

 

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3

 Defendants argue that many of the documents contained in the Levesque file are "drafts and summaries"

which are traditionally considered deliberative in nature. (See Jt. Stat. Rep. at 21). However, "drafts" are neither

presumptively privileged nor per se exempt from disclosure. See Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257 (D.C.

Cir. 1982); Judicial Watch, Inc. v. United States Postal Service, 297 F.Supp.2d 252, 261 (D.D.C. 2004). Nor are purely

factual summaries protected by the deliberative process privilege. See Allocco Recycling, Ltd. v. Doherty, 220 F.R.D.

Report and the Levesque Study do not fall within the scope of the deliberative process privilege.

Nothing contained in the documents at issue "directly contribute to the formulation of important

public policy." See Soto v. City of Concord, 162 F.R.D. 603, 612 (N.D. Cal. 1995) (citing cases).

Rather, both the Harris Report and the Levesque Study address the management practices of the

Dallas OCR. The redacted pages of the Harris Report contain information about grievances filed

by individual employees, complaints regarding workplace discrimination, and scathing criticisms

of the management practices of high-level supervisors. Among the recommendations made in the

Report are settling employee complaints and relieving supervisors of their authority. Such

information is not privileged. Scott, 219 F.R.D. at 338 (privilege shields deliberations that

contribute to the formulation of important public policy, not routine operating decisions like the

termination of a supervisor); Waters v. United States Capitol Police Board, 216 F.R.D. 153, 163

(D.D.C. 2003) (deliberative process privilege does not extend to a recommendation as to a particular

personnel matter). See also Hopkins v. United States Dep't of Housing and Urban Development, 929

F.2d 81, 84 (2d Cir. 1991), quoting Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C.

Cir. 1978) (en banc) (for privilege to apply, document must be "actually . . . related to the process

by which policies are formulated").

The documents contained in the Levesque file consist of drafts and handwritten notes

regarding the scope of the investigation, notes of interviews with OCR employees, and documents

provided by employees and union representatives. All these documents pertain to management

practices or personnel issues. None implicate opinions or recommendations on agency policy.

Consequently, the deliberative process privilege does not apply.3

 

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407, 412 (S.D.N.Y. 2004). The "draft" documents in the Levesque file merely define the charter and scope of his

investigation and set forth findings on OCR management practices and personnel issues. None of the documents contain

opinions on legal or policy matters. Similarly, the "summaries" prepared by Levesque are nothing more than notes to

aid him in accurately recalling the facts learned during his investigation. Such notes are not privileged. See Kluth v. City

of Converse, Civ. A. No. SA-04-CA0798-XR, 2005 WL 1799555 at *2 (W.D. Tex. Jul 27, 2005) (witness statements

to investigators are outside the scope of the deliberative process privilege). 

CONCLUSION

Plaintiff's motion to compel discovery is granted. Defendants shall produce the documents

identified in their privilege log to opposing counsel by November 15, 2005. 

Although the court has determined that the deliberative process privilege does not prevent

the disclosure of materials pertaining to the Harris Report and the Levesque Study, such an objection

was substantially justified. Accordingly, plaintiff's request for costs and attorney's fees is denied.

See FED. R. CIV. P. 37(a)(4)(A). 

SO ORDERED.

DATED: November 8, 2005.

 

 

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