United States District Court, E.D. North Carolina, Western Division
JAMES E. GATES, Magistrate Judge.
This case comes before the court on the motion (D.E. 73) with incorporated memorandum filed by plaintiffs Thomas Heyer and Robert Paul Boyd (collectively "plaintiffs") to compel the production of documents from defendants United States Bureau of Prisons, Thomas R. Kane, Ike Eichenlaub, Sara M. Revell, Tracy W. Johns, and Eric H. Holder, Jr. (collectively "defendants"). The motion has been fully briefed and referred to the undersigned for disposition pursuant to 28 U.S.C. § 636(b)(1)(A). ( See Docket Entry after D.E. 91). For the reasons set forth below, the motion will be denied.
Plaintiffs are inmates in the custody of the Bureau of Prisons who have been designated as sexually dangerous persons pursuant to 18 U.S.C. § 4248. (Am. Comp. (D.E. 24) ¶ 2). They are hearing impaired. ( Id. ¶¶ 7, 11). They allege that defendants have failed to provide them with qualified American Sign Language ("ASL") interpreters or other accommodations for their hearing loss and have thereby deprived them of "adequate and informed medical treatment, participat[ion] in institution disciplinary proceedings, effectively tak[ing] part in any rehabilitative, educational, or religious programs, or communicat[ion] with those within and outside the institution." ( Id. ¶ 1). In their amended complaint, plaintiffs asserted ten claims, bearing the count numbers indicated: (1) discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. ( id. ¶¶ 79-94); (2) due process violations and deprivation of liberty pursuant to the Fifth Amendment of the United States Constitution ( id. ¶¶ 95-100); (3) due process violations of the right to a qualified interpreter at disciplinary hearings pursuant to the Fifth Amendment ( id. ¶¶ 101-05); (4) due process violations of the right to informed consent to medical treatment pursuant to the Fifth Amendment ( id. ¶¶ 106-12); (5) due process violations of the right to privacy in medical treatment pursuant to the Fifth Amendment ( id. ¶¶ 113-19); (6) due process violations of the right to adequate medical treatment pursuant to the Fifth Amendment ( id. ¶¶ 120-26); (7) due process violations of the right to a reasonably safe environment pursuant to the Fifth Amendment ( id. ¶¶ 127-33); (8) violation of the right to free speech pursuant to the First Amendment ( id. ¶¶ 134-40); (9) violation of the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq. ( id. ¶¶ 141-48); and (10) violation of the right to free exercise of religion pursuant to the First Amendment ( id. ¶¶ 149-54). Plaintiffs sought declaratory relief, injunctive relief, costs, and attorneys' fees. ( Id. at 31-32, Prayer for Relief).
On defendants' motion for dismissal or summary judgment, the court dismissed counts one and five without prejudice. ( See D.E. 46 at 5-6). Defendants deny the material allegations in the remaining counts of plaintiffs' amended complaint. ( See generally Ans. (D.E. 51)).
On 18 April 2013, plaintiffs served on defendants their first requests for production of documents. (Mot. 2). Defendants responded to the production requests, but withheld 69 otherwise responsive documents on the basis of the deliberative process privilege. The withheld documents are identified in defendants' privilege log (D.E. 84-1). By the instant motion, plaintiffs seek to compel production of these documents. Plaintiffs describe the withheld communications, which include emails and memoranda, as relating to four categories: "(a) accommodations for Plaintiffs' medical needs, (b) non-aural alerts, (c) video phones, video relay interpreting, and related technological issues, and (d) Defendants' funding available to pay for qualified ASL interpreters." (Mot. 2).
I. APPLICABLE LEGAL STANDARDS
A. General Discovery Principles
The Federal Civil Rules enable parties to obtain information by serving requests for discovery on each other, including requests for production of documents. See generally Fed.R.Civ.P. 26-37, 45. Rule 26 provides for a broad scope of discovery:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense.... For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Fed.R.Civ.P. 26(b)(1). The rules of discovery, including Rule 26, are to be given broad and liberal construction. Herbert v. Lando, 441 U.S. 153, 177 (1979); Nemecek v. Bd. of Governors, No. 2:98-CV-62-BO, 2000 WL 33672978, at *4 (E.D. N.C. 27 Sep. 2000).
While Rule 26 does not define what is deemed relevant for purposes of the rule, relevance has been "broadly construed to encompass any possibility that the information sought may be relevant to the claim or defense of any party.'" Equal Employment Opportunity Comm'n v. Sheffield Fin. LLC, No. 1:06CV889, 2007 WL 1726560, at *3 (M.D. N.C. 13 June 2007) (quoting Merrill v. Waffle House, Inc., 227 F.R.D. 467, 473 (N.D. Tex. 2005)). The district court has broad discretion in determining relevance for discovery purposes. Watson v. Lowcountry Red Cross, 974 F.2d 482, 489 (4th Cir. 1992).
B. Deliberative Process Privilege
The deliberative process privilege protects "documents reflecting advisory opinions, 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 (1975). It is designed to protect communications among governmental officials and encourage open and frank discussions of policy issues. Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) ("The deliberative process privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news, and its object is to enhance the quality of agency decisions' by protecting open and frank discussion among those who make them within the Government.") (internal citation omitted); City of Va. Beach v. U.S. Dep't of Commerce, 995 F.2d 1247, 1252-53 (4th Cir. 1993) (noting that the deliberative process privilege "encourages free-ranging discussion of alternatives; prevents public confusion that might result from the premature release of such nonbinding deliberations; and insulates against the chilling effect likely were officials to be judged not on the basis of their ...