Sherman v. The Regents of University of California

Background

Benjamin Sherman and Zayd Hammoudeh brought claims against The Regents of the University of California involving alleged deliberate indifference to sexual harassment, race or national-origin harassment, retaliation, and discrimination. The claims arose from the plaintiffs’ interactions with Professor Dimitris Achlioptas while both plaintiffs were students at the University of California Santa Cruz.

The plaintiffs served document requests on June 10, 2021. In response, The Regents objected to producing documents based on the deliberative process privilege and the official information privilege. The deliberative process privilege can protect certain predecision government recommendations and discussions. The official information privilege is a qualified protection for government information when disclosure could harm specified government or privacy interests.

The Regents did not provide a privilege log before fact discovery closed. In connection with the dispute, it provided a log identifying 110 documents or redactions as protected by one or both privileges. The plaintiffs asked the court to order production, and The Regents opposed that request.

Court’s analysis

Federal privilege law governed because the case included federal and state claims and the documents related to both. Under Federal Rule of Civil Procedure 26(b)(5), a party claiming privilege must describe withheld materials well enough for the opposing party and the court to evaluate the claim. The court noted that privilege is commonly supported by a privilege log and that generalized or boilerplate objections are insufficient.

The Regents’ July 19, 2021 responses used the same one-sentence objection for each request: the request might seek information protected by the deliberative process privilege and the official information doctrine. The court found that this was a boilerplate objection that did not provide the information required by Rule 26(b)(5) or support either specific privilege claim.

The Regents later served a privilege log on December 22, 2021, seven days after fact discovery closed. Although the log listed dates, authors, recipients, and email subject lines, its “Reason” column repeated only “Deliberative process and/or official information” for each document. The court found that the log did not explain the basis for the claims. The court also found that The Regents had not complied with the court’s standing order, which required detailed and prompt privilege logs.

The court concluded that The Regents failed to timely assert either privilege and failed to carry its burden to show that either privilege applied to any document or redaction. The court stated that reciting the governing law was not enough and that applying either privilege was not self-evident from the record.

Disposition

Judge Virginia K. Demarchi found that The Regents had not timely or properly established that the documents and redactions listed in the privilege log were protected. The Regents therefore could not rely on the deliberative process or official information privileges to withhold them. The court ordered The Regents to produce the documents, or unredacted versions where applicable, to the plaintiffs no later than March 31, 2022.