Portney v. County of Lake

Background

Jonathan Portney alleges that the County of Lake terminated his employment for retaliatory and discriminatory reasons, among other claims. Portney sought to reopen the deposition of Eddie Crandell, a member of the County’s Board of Supervisors. During the original deposition, defense counsel instructed Crandell not to answer questions about proceedings in a closed session.

The closed-session agenda included an item concerning consultation with legal counsel about significant exposure to litigation and a separate item concerning public-employee discipline, dismissal, or release. The opinion also notes that the Board voted to terminate Portney, identified as the Health Services Director, effective immediately.

Deliberative-Process Privilege

The County argued that California law prohibited disclosure of the closed-session proceedings and also invoked the federal deliberative-process privilege. The court explained that because the case includes federal and state claims involving the same evidence, federal privilege law governs rather than the state-law prohibition in the Brown Act.

The deliberative-process privilege protects certain predecisional and deliberative communications, such as opinions, recommendations, or advice about policies or decisions. It is a qualified privilege, meaning the court must balance the government’s confidentiality interests against factors including the evidence’s relevance, the availability of other evidence, the government’s role in the case, the importance of accurate fact-finding, and the federal interest in enforcing federal law.

The court assumed for purposes of its analysis that the communications met the privilege’s basic requirements. It nevertheless concluded that Portney’s strong interest in learning the County’s reasons for terminating him, together with the federal interest in enforcing antidiscrimination law, outweighed the County’s countervailing interests. The County had not identified a specific confidentiality interest that justified withholding the information.

The court therefore ruled that the deliberative-process privilege did not prevent Portney from asking Crandell, and potentially other witnesses who attended, about the closed-session proceedings where the Board decided to terminate Portney’s employment.

Attorney-Client Privilege

The County also argued that attorney-client privilege protected the information because the Board sought legal advice during the closed session. The court explained that the privilege protects confidential communications made for the purpose of obtaining legal advice from a professional legal adviser acting in that capacity. The party asserting the privilege bears the burden of establishing its elements.

The court distinguished between communications made primarily to obtain legal advice and discussions about the Board’s substantive employment decision. The agenda item concerning potential legal exposure indicated that communications made for the purpose of obtaining legal advice were privileged. But the separate agenda item concerning Portney’s discipline, dismissal, or release did not show an intent to seek legal advice.

Accordingly, the County could instruct witnesses not to disclose communications made primarily to obtain legal advice. Portney could nevertheless ask Crandell and potentially other witnesses about substantive discussions concerning whether Portney should be fired or otherwise disciplined.

Ruling and Scope of Deposition

Judge Jeffrey White granted Portney’s request to reopen Crandell’s deposition. The reopened deposition may address questions Crandell was previously instructed not to answer, other questions about the closed session in which the Board decided to fire Portney, and additional questions that naturally follow from Crandell’s answers.

The County may not instruct Crandell not to answer merely because a question exceeds the scope allowed by the order. The County may seek appropriate sanctions after the deposition for substantial violations of that scope. The parties were ordered to meet and confer about the deposition date and to file a joint letter by September 17, 2025, if they could not agree.