Calvary Chapel San Jose v. Cody
- Beth Freeman
- 5:20-cv-03794
- U.S. District Court · Northern District of California
- 5
In Calvary Chapel San Jose v. Cody, Magistrate Judge Demarch ruled that Santa Clara County need not disclose documents protected by two privileges.
Calvary Chapel San Jose, Mike McClure, and the other plaintiffs were denied access to the disputed discovery materials; the County of Santa Clara was not required to produce them.
What happened
In Calvary Chapel San Jose v. Cody, the plaintiffs asked the court to require the County of Santa Clara to produce documents it had withheld or redacted during discovery. The County claimed the documents were protected by attorney-client privilege or the privilege for government decision-making discussions.
The plaintiffs argued that some communications among public health officials were not legal advice merely because an attorney was copied. They also argued that other documents were not protected decision-making materials or were necessary to prove their claims about the County’s COVID-19 public health orders.
The court reviewed the documents privately and ruled that the County did not have to produce them. Magistrate Judge Demarch found that the documents were protected by the asserted privileges and that the plaintiffs had not shown a sufficient need to overcome the protection for government deliberations.
The detailed version
- Calvary Chapel San Jose v. Cody · No. 5:20-cv-03794
- Beth Freeman
- Aug. 18, 2022
Background
The plaintiffs and the County of Santa Clara asked the court to resolve a discovery dispute. The County had withheld or redacted documents based on the attorney-client privilege and the deliberative-process privilege. The court reviewed representative disputed documents privately and held a hearing.
The plaintiffs assert claims against the County and several officials concerning alleged violations of the First, Eighth, and Fourteenth Amendments, the California Constitution, and California’s Bane Act. The claims concern enforcement of state and local public health orders addressing the COVID-19 pandemic. The County also filed a separate enforcement action against Calvary Chapel San Jose and Mike McClure in Santa Clara County Superior Court.
Legal standards
The attorney-client privilege protects confidential communications made to obtain legal advice from a lawyer acting as a legal adviser, as well as the lawyer’s advice in response. The party asserting the privilege must establish that it applies.
The deliberative-process privilege protects government documents that reflect advisory opinions, recommendations, or deliberations used to formulate government decisions or policies. A document must be both pre-decisional—created before the relevant decision—and deliberative, meaning that it contains opinions, recommendations, or advice about policy. The privilege is qualified rather than absolute, so a litigant may obtain protected materials if the need for them and the need for accurate fact-finding outweigh the government’s interest in confidentiality.
Analysis
For the documents challenged under the attorney-client privilege, the court found that items 2 and 3 sought legal advice and that item 4 reflected legal advice. The court also found that the redacted portions of the other challenged items were narrowly limited to communications seeking or reflecting advice from counsel. The County therefore did not have to produce those materials.
For items 2 through 4, 38, and 119 through 120, the court found that the documents reflected discussions and deliberations about the March 16, 2020 shelter-in-place order, possible changes to that order, or additional public-health actions and directives. The court rejected the plaintiffs’ argument that the materials were necessary because they had no other way to learn how or why the County and other officials made the challenged decisions. The court noted that the County had already publicly disclosed or produced substantial information and had stated that witnesses would be available to testify.
The court also concluded that the plaintiffs had not shown how the withheld documents would reveal relevant information about the County’s alleged discriminatory purpose, particularly if the documents did not refer to places of worship or religious gatherings. The plaintiffs likewise had not explained how the decision-making process reflected in the documents was relevant to their challenge to the public health orders as applied.
Disposition
The court concluded that the disputed materials were privileged and that the County need not disclose them to the plaintiffs in discovery. The order addressed discovery privileges and did not decide the merits of the plaintiffs’ underlying constitutional or state-law claims.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.