Scott v. PPG Industries, Inc.
1992 U.S. Dist. LEXIS 8735, 142 F.R.D. 291, 59 Empl. Prac. Dec. (CCH) 41,608 (1992)
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Rule of Law:
The deliberative process privilege protects a government agent's testimony regarding internal, pre-decisional agency communications. This privilege is not waived by the inadvertent disclosure of the related documents and can only be overcome if a party demonstrates a compelling need that outweighs the harm disclosure would cause to open and frank communication within the agency.
Facts:
- In 1982, female chemical analysts employed by PPG Industries (PPG) filed charges of sex discrimination with the Equal Employment Opportunity Commission (EEOC).
- EEOC investigator Mark Lofstead conducted an investigation, during which he and other EEOC staff created internal documents, including personal notes, drafts of determinations, and inter-agency memoranda.
- In May 1986, the EEOC issued a Determination finding reasonable cause to believe that PPG had discriminated against the employees.
- The EEOC decided not to file its own lawsuit against PPG, after which the employees initiated their own suit.
- Following the commencement of the lawsuit, PPG submitted a Freedom of Information Act (FOIA) request to the EEOC for its investigation files.
- The EEOC complied with the request but inadvertently included several internal documents that revealed the agency's deliberative process.
Procedural Posture:
- The plaintiffs, female employees, filed a civil action against their employer, PPG Industries, in U.S. District Court for alleged violations of Title VII and the Equal Pay Act.
- During discovery, defendant PPG deposed EEOC investigator Mark Lofstead.
- At the deposition, the EEOC's attorney asserted the deliberative process privilege and instructed Lofstead not to answer questions regarding certain internal agency documents.
- PPG filed a Motion for an Order Compelling Discovery in the U.S. District Court.
- The EEOC, a non-party, filed a Cross-Motion for Permissive Intervention and a Cross-Motion for a Protective Order to prevent the testimony.
- The U.S. District Judge referred these nondispositive motions to a U.S. Magistrate Judge for resolution.
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Issue:
Does the deliberative process privilege protect a government agency investigator from being compelled to testify about the content of internal, pre-decisional agency documents, even after those documents were inadvertently disclosed to the opposing party?
Opinions:
Majority - Magistrate Judge Core
Yes. The deliberative process privilege protects the investigator from being compelled to testify because the information sought falls squarely within the privilege's scope, the privilege was not waived by inadvertent disclosure, and the harm to future agency communication from compelling testimony outweighs the opposing party's need for the information. The court reasoned that the documents at issue—personal notes, evaluations, and inter-agency communications—are the exact type of materials the privilege is designed to protect to ensure frank and open communication within a government agency. The court found that the privilege was properly invoked by the EEOC's litigation attorney during the deposition, stating it would be 'ludicrous' to require the agency head to personally invoke the privilege for testimony. Furthermore, the inadvertent release of the documents via a FOIA request did not constitute a waiver, as it was a mistake contrary to EEOC policy and the agency acted promptly upon discovering it. Applying a four-factor balancing test, the court concluded that while the evidence was relevant and unavailable elsewhere, the potential harm to the EEOC's ability to function effectively by chilling internal communications was a dispositive factor that weighed heavily in favor of protecting the testimony.
Analysis:
This order clarifies the application of the deliberative process privilege in the context of deposition testimony, distinguishing the procedural requirements for invoking it from those required for document production. It strongly affirms that inadvertent disclosure of privileged documents does not automatically constitute a waiver, thereby protecting agencies from clerical errors. The court's application of the balancing test underscores the significant weight given to protecting the integrity of an agency's internal deliberative functions, even when the information sought is relevant to litigation and not otherwise available. This reinforces a high bar for parties seeking to overcome the privilege.
