United States District Court, E.D. Virginia, Alexandria Division
M. Brinkema, United States District Judge.
Harrison ("Harrison") and OutServe-SLDN, Inc.
("OutServe") (together, "plaintiffs") bring
this civil action against the U.S. Department of Defense
("DoD"), the Secretary of Defense, and the
Secretary of the Army (collectively, "defendants"),
challenging the constitutionality of the DoD and Army
policies governing servicemembers living with the human
immunodeficiency virus ("HIV"). Before the Court
is a dispute related to 330 documents for which
defendants have asserted the "deliberative
process" privilege. After several hearings, extensive
briefing, and an in camera review of a random selection of 33
of the disputed documents, the magistrate judge found that
the documents either were not subject to the deliberative
process privilege or should be produced to plaintiffs under
the balancing framework set out in Cipollone v. Liggett
Group. Inc.. Nos. 86-1198, 86-1223, 1987 WL 36515 (4th
Cir. Feb. 13, 1987). The magistrate judge accordingly granted
plaintiffs' motion to compel production of all 330 of the
disputed documents. Defendants timely objected to the
magistrate judge's ruling under Rule 72(a) of the Federal
Rules of Civil Procedure. For the reasons that follow,
defendants' objection will be sustained in part and
overruled in part, the magistrate judge's order will be
affirmed in part and reversed in part, and plaintiffs'
motion to compel will be granted in part and denied in part.
enlisted in the U.S. Army in 2000. Compl. for Declaratory
& Inj. Relief [Dkt. No. 1] ("Compl.") ¶
40. Three years later, he was discharged from active duty and
became a member of the Army Reserves, joining the Oklahoma
National Guard and pursuing first an undergraduate degree and
then a law degree. Id. ¶¶ 41-42. Although
his legal studies were interrupted by a 16-month deployment
to Afghanistan beginning in early 2006, Id. ¶
43, he ultimately received a J.D., as well as an M.B.A., from
the University of Oklahoma in 2011, Id. ¶ 45.
In 2011, he was also deployed for a second tour of duty, this
time to Kuwait. Id. ¶ 46. In 2012, after
returning from that tour, Harrison was diagnosed with HIV.
Id. ¶ 47. He immediately began antiretroviral
therapy, and soon his "viral load"-the number of
copies of the HIV virus per milliliter of his blood-was
"undetectable" or "suppressed," a status
he has maintained ever since. Id. ¶ 48.
was first offered a position as a Judge Advocate General
("JAG") officer when he passed the Oklahoma bar
exam. Compl. ¶ 49. Although he turned that offer down to
take part in the Presidential Management Fellow program in
Washington, D.C., he soon applied for a similar JAG position
with the D.C. National Guard. Id. ¶¶
50-51. Harrison was told that he would be commissioned as a
JAG officer, with the rank of captain, so long as he
satisfied the Army's accessions standards, which are
applied to commissioning as well as enlisting servicemembers,
see id ¶ 52; however, Harrison had a problem. The
Army's accessions policy flatly prohibits any
HIV-positive individual from enlisting, or by extension from
being commissioned as an officer, in the active or reserve
components of the Army. See Id. ¶¶ 32, 35.
Although Harrison received the highest possible score in
every component of his medical exam, he was nonetheless
classified as nondeployable based solely on his HIV-positive
status and was denied commissioning. Id. ¶ 53.
He attempted to secure a medical waiver and an exception to
policy ("ETP") granting him relief from that
across-the-board prohibition but was unsuccessful.
Id. ¶¶ 54-63. Equally unsuccessful was his
petition to the Army Board for Correction of Military
Records, which was rejected nearly two years after it had
been filed. See Id. ¶ 64 (detailing his
petition); Roe v. Shanahan, 359 F.Supp.3d 382, 404
(E.D. Va. 2019) (describing the results of Harrison's
petition), appeal docketed. No. 19-1410 (4th Cir.
Apr. 18, 2019).
and OutServe, an organization representing the interests of
veterans and active-duty servicemembers who are LGBTQ or HIV
positive, filed this suit in May 2018, arguing that the DoD
and Army policies governing the accession, and thus the
enlistment or commissioning, of individuals living with
HIV-particularly DoD Instruction ("DoDI")
6485.01 and Army Regulation ("AR")
600-110-violate the equal protection component of
the Fifth Amendment's Due Process Clause, both on their
face and as applied to Harrison. Plaintiffs seek declaratory
and injunctive relief, litigation costs and expenses, and
their attorneys' fees.
January 2019, plaintiffs moved to compel defendants to
produce approximately 1, 500 documents that defendants were
withholding based on the deliberative process
privilege.The contested categories of discovery
included "documents and information considered or relied
upon in the drafting or updating of [the Armed Forces']
regulations pertaining to HIV" and those
"considered or relied upon in drafting two DoD reports
to Congress regarding DoD's HIV policies." Dkt. No.
108, at 2. Plaintiffs advanced two principal arguments in
their motion to compel: first, that the deliberative process
privilege did not apply at all because "the
government's intent is at issue"; and, second, that
even if the privilege did apply, it should yield because the
"need for the withheld discovery outweighs any potential
interests served by the privilege." Id. at 1-2.
For their part, defendants objected that plaintiffs were
seeking an inappropriate "across-the-board ruling"
and "ha[d] not identified specific documents ... in any
meaningful way." Dkt. No.111, at 2-3. Defendants also
insisted that their invocation of the privilege was proper
under the balancing analysis set forth in governing Fourth
Circuit precedent. See Id. at 7-9, 11-21.
Specifically, they argued that the withheld information was
categorically irrelevant to plaintiffs' claims; that
relevant evidence was available from other sources; and that
an order requiring defendants to disclose the withheld
documents would subvert the purposes of the deliberative
process privilege and hinder the frank discussions necessary
for effective policymaking.
magistrate judge held several hearings on plaintiffs'
motion to compel. At the first hearing, he declined to
address defendants' argument about the government's
intent, stating that the issue of which level of scrutiny
should apply was better left "for trial." Tr. of
Mot. Hr'g [Dkt. No. 115] ("Feb. 1, 2019 Tr.")
7. The magistrate judge observed that the parties had not
engaged in a good-faith effort to examine each document
individually and held the motion in abeyance to enable the
parties to meet and confer again. Id. at 16-17. The
parties met and resolved more issues but were unable to reach
an agreement on most of the contested documents. Nonetheless,
the parties proposed a solution: They would submit for in
camera review "a representative sample of several
documents from each of 15 separate categories" that had
been identified by defendants. Joint Status Report [Dkt. No.
116] 2-3. The magistrate judge accepted the
parties' proposal and ordered that the parties produce
the sample by February 12, 2019. Defendants prepared the
sample, which comprised 32 documents and one DVD containing
an audio recording of a working group session, and delivered
it to the magistrate judge's chambers on that date.
magistrate judge held a second hearing on the motion to
compel in which he raised several issues with the parties
based on his in camera review, including whether
some of the documents contained factual or nondeliberative
material not subject to the privilege and whether the
privilege had been waived with respect to draft documents for
which final versions were publicly available. The magistrate
judge also observed that defendants' privilege log did
not provide specific, individualized explanations as to why
the privilege had been asserted for each document, relying
instead on "coined phrase[s]" or
"buzzwords." Tr. of Mot. Hr'g [Dkt. No. 125]
("Feb. 22, 2019 Tr.") 30, 33-35. The magistrate
judge gave the parties a final opportunity to meet and confer
to reduce the scope of their disagreement. Id. at
49-50. The parties subsequently advised the magistrate judge
that although they had reached agreement as to all but 330 of
the documents, they were unable to reduce the dispute
further, and they asked the magistrate judge "to swiftly
issue an order." Joint Status Report [Dkt. No. 126] 1-2.
magistrate judge granted plaintiffs' motion to compel as
to the remaining 330 disputed documents on March 14, 2019.
The order articulated multiple grounds for the ruling,
including that defendants had not demonstrated that all of
the withheld documents were deliberative in nature, Order
[Dkt. No. 128] 1-2; that under the four-part balancing test
articulated in Cipollone v. Liggett Group. Inc..
Nos. 86-1198, 86-1223, 1987 WL 36515 (4th Cir. Feb. 13,
1987), defendants' assertion of the privilege should
yield in favor of plaintiffs' interest in the relevant
and otherwise discoverable information, Id. at 2-3;
and that the privilege had been waived with respect to
withheld draft documents that were "substantially
identical" to the final, publicly available versions of
those documents, Id. at 3. Defendants timely
objected to the magistrate judge's ruling under Rule
72(a) of the Federal Rules of Civil Procedure.
timely objection to a magistrate judge's nondispositive
ruling, the district court "must... modify or set aside
any part of the order that is clearly erroneous or is
contrary to law." Fed.R.Civ.P. 72(a); see also
28 U.S.C. § 636(b)(1)(A). The deferential clear-error
standard provides that factual portions of the magistrate
judge's ruling may be set aside where, "although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed." Bruce v.
Hartford, 21 F.Supp.3d 590, 593-94 (E.D. Va. 2014)
(quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948)). Questions of law, on the other hand, are
reviewed under the contrary-to-law standard, which is
essentially synonymous with de novo review. See
Id. at 594. But see In re Outsidewall Tire
Litig.. 267 F.R.D. 466, 470 (E.D. Va. 2010) (observing
that "decisions of a magistrate judge concerning
discovery disputes and scheduling should be afforded great
deference" (internal quotation marks and citation
omitted)). The Court is "entitled to affirm on any
ground appearing in the record, including theories not relied
upon or rejected by" the magistrate judge. Cf. Scott
v. United States, 328 F.3d 132, 137 (4th Cir. 2003).
affords a qualified privilege to "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) (internal quotation
marks and citation omitted). This "deliberative
process" privilege rests on the notion 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." Dep't of the Interior v. Klamath
Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001)
(internal citation omitted) (quoting Sears, Roebuck,
421 U.S. at 151); see also Coastal States Gas Corp. v.
Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)
("The privilege ... serves to assure that subordinates
within an agency will feel free to provide the decisionmaker
with their uninhibited opinions and recommendations without
fear of later being subject to public ridicule or criticism;
to protect against premature disclosure of proposed policies
before they have been finally formulated or adopted; and to
protect against confusing the issues and misleading the
public by dissemination of documents suggesting reasons and
rationales for a course of action which were not in fact the
ultimate reasons for the agency's action.").
deliberative process privilege is limited in two relevant
ways. First, as a threshold matter, it applies only to those
portions of documents that are predecisional and deliberative
in nature. For instance, it does not shield statements about
a policy after the policy has been finalized, and it
"does not protect purely factual information, unless it
is inextricably intertwined with deliberative material."
Stone v. Trump,356 F.Supp.3d 505, 514 (D. Md. 2018)
(citing City of Virginia Beach v. U.S. Dep't of
Commerce,995 F.2d 1247, 1253 (4th Cir. 1993)). Second,
"[w]hen a party ... seeks agency materials, the validity
of the privilege 'depends ... upon a balancing of the
public interest in nondisclosure with the need for the
information as evidence.'" Cipollone v. Liggett
Grp. Inc., Nos. 86-1198, 86-1223, 1987 WL 36515, at *2
(4th Cir. Feb. 13, 1987) (per curiam) (third alteration in
original) (citation omitted). "In striking this balance,
the common law of discovery [has] developed a number of
factors for the court to consider, including: (1) the
relevance of the evidence to the lawsuit; (2) the
availability of alternative evidence on the same matters; ...