United States District Court, D. Rhode Island
WILLIAM E. SMITH, Chief Judge.
the Court is the State of Rhode Island and the Rhode Island
Department of Corrections' (collectively
“RIDOC”) appeal of Magistrate Judge Lincoln D.
Almond's order denying RIDOC's Motion to Compel the
United States Department of Justice's
(“USDOJ”) 30(b)(6) designee to testify about the
information listed in Matter 5 (the “Matter”) of
the RIDOC's deposition notice. (ECF No. 60.) The Matter
requested the following testimony:
method of calculation by which the DOJ evaluated the
RIDOC's employment and selection procedures, including,
but not limited to:
a. Identifying the steps taken and person(s) involved in
establishing any statistical analysis;
b. The factual basis for any statistical calculations;
c. The methodology employed to produce any statistical
d. The dates that any statistical analysis was conducted;
e. The factual basis for each and every statistical
allegation contained in DOJ's complaint.
(Defs.' Mem. of Law 1 n.1, ECF No. 60-1.) The USDOJ
objected to this Matter, arguing that it sought protected
work product, and fell under the government's
deliberative process and law enforcement/investigative
process privileges. (See Pl.'s Opp'n, ECF
No. 63.) The RIDOC countered that it is entitled to at least
some of the information requested in the Matter to support
its affirmative defenses of laches and estoppel.
(See Defs.' Reply, ECF No. 64.) For the reasons
that follow, RIDOC's Motion is GRANTED IN PART and DENIED
courts review discovery rulings by a magistrate judge under
the clearly erroneous standard. See 28 U.S.C. §
636(b)(1)(A) (“A judge of the court may reconsider any
pretrial matter . . . where it has been shown that the
magistrate's order is clearly erroneous or contrary to
law.”); Fed.R.Civ.P. 72(a) (“The district judge
in the case must consider timely objections and modify or set
aside any part of the order [on a non-dispositive matter]
that is clearly erroneous or is contrary to law.”);
United States v. Shaw, 113 F.Supp.2d 152, 161 (D.
Mass. 2000). Consequently, this Court must accept Magistrate
Judge Almond's findings “unless, after scrutinizing
the entire record, we ‘form a strong, unyielding belief
that a mistake has been made.'” Phinney v.
Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999)
(quoting Cumpiano v. Banco Santander P.R., 902 F.2d
148, 152 (1st Cir. 1990)).
doctrines under which USDOJ seeks protection share two
important attributes. First, each is a qualified privilege,
meaning that the requesting party can overcome the privilege
by showing a sufficient need for the protected information.
See In re San Juan Dupont Plaza Hotel Fire Litig.,
859 F.2d 1007, 1015 (1st Cir. 1988) (“Courts typically
afford ordinary work product only a qualified immunity,
subject to a showing of substantial need and undue hardship .
. . .”); Ass'n for Reduction of Violence v.
Hall, 734 F.2d 63, 66 (1st Cir. 1984) (The law
enforcement and deliberative process privileges “are
essentially similar in their underlying rationales and
principles of application. They are qualified rather than
absolute, and a trial court is thus obliged to balance
conflicting interests on a case-by-case basis in ruling on
particular claims of privilege.”). Second, the level of
protection afforded to the information depends on the type of
information sought. Facts are afforded less protection than
opinions, mental impressions, or analytical techniques.
See Envtl. Prot. Agency v. Mink, 410 U.S. 73, 87- 88
(1973) (considering “whether production of the
contested document would be injurious to the consultative
functions of government that the privilege of nondisclosure
protects, ” and concluding “in the absence of a
claim that disclosure would jeopardize state secrets, . . .
memoranda consisting only of compiled factual material or
purely factual material contained in deliberative memoranda
and severable from its context would generally be available
for discovery by private parties in litigation with the
Government” (internal citations omitted)),
superseded by statute on other grounds as stated in
C.I.A. v. Sims, 471 U.S. 159 (1985); New Mexico Tech
Research Found. v. Ciba-Geigy Corp., No. MISC. 96-085B,
1997 WL 576389, at *2 (D.R.I. Jan. 3, 1997) (distinguishing
between the level of protection afforded to ordinary
work-product and opinion work-product); Jenkins v. State
of Rhode Island State Police Dep't, No. CA 04-453 S,
2006 WL 1371644, at *3 (D.R.I. May 15, 2006) (noting that the
law enforcement privilege “recognizes ‘a
privilege for documents that would tend to reveal law
enforcement investigative techniques or sources'”
(internal quotation marks omitted) (citing Ass'n for
Reduction of Violence, 734 F.2d at 65-66)).
Matter 5 seeks four categories of information: (1) the facts
USDOJ relied on to conduct its statistical analyses of
RIDOC's hiring process, (2) the dates on which USDOJ
conducted those analyses, (3) the results of those analyses,
and (4) the methods USDOJ used in conducting those analyses.
The first two categories - the facts USDOJ used to conduct
its various analyses and the dates it conducted those
analyses - are purely factual in nature. See e.g. EEOC v.
Peoplemark, Inc., No. 1:08-CV-907, 2010 WL 748250, at *2
(W.D. Mich. Feb. 26, 2010) (the dates on which investigations
were started and finished did not fall under deliberative
process privilege); Suboh v. Bellsouth Bus. Sys.,
Inc., No. CIV.A1:03CV0996CCCCH, 2004 WL 5550100, at *9
(N.D.Ga. Nov. 17, 2004) (“Nevertheless, although the
Defendant is not required to produce the report itself to
Plaintiff, the Court reiterates its conclusion that the data
underlying the statistical analyses is not protected from
disclosure by the attorney-client privilege or the
work-product doctrine.”). And USDOC has established a
sufficient need for these facts. Its laches defense, for
example, requires RIDOC to show that USDOJ delayed filing
suit for an unreasonable and inexcusable amount of time after
USDOJ knew or should have known that it had a claim against
RIDOC. See State of Kansas v. State of Colorado, 514
U.S. 673, 687-88 (1995); A.C. Aukerman Co. v. R.L.
Chaides Const. Co., 960 F.2d 1020, 1032 ...