The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY
This case arises out of the issuance in October 1990 of a mayoral directive that (1) froze the salaries of New York City employees not subject to collective bargaining contracts ("Managers") who were earning salaries over $ 40,000 per year, and (2) cut by five percent the salaries of Managers earning over $ 70,000 per year (the "Mayoral Directive"). The salary freeze and pay cut were continued by a subsequent directive issued in July 1991. In response to a request from Mayor Dinkins, other defendants in this case took similar, but not identical, salary actions.
Plaintiffs contend that these salary actions violated the Federal and New York State equal protection guarantees by irrationally discriminating between Managers and non-managerial employees,
(the latter having received salary increases since the salary actions went in force). Plaintiffs also contend that the Mayoral Directives violate Federal and State constitutional due process guarantees for similar reasons.
In light of forthcoming cross-motions for summary judgment, the court limited discovery in this action. In order to oppose defendants' motion for summary judgment, plaintiffs were permitted to depose New York City Commissioner of Labor Relations James F. Hanley. That deposition took place on March 12, 1992. During the deposition, defendants' counsel objected to twenty five questions posed by plaintiffs' counsel under the claim of deliberative process privilege.
Meanwhile, a discovery dispute arose in this case surrounding plaintiffs' First Request of Documents. Defendants provided the requested documents in part, but withheld or redacted several under the claim of deliberative process and/or attorney-client privilege. The parties brought this matter before Judge Sprizzo in Part I on February 14, 1992. On February 20, 1992, Judge Sprizzo referred the matter to a magistrate judge; Magistrate Judge Katz was assigned on March 2, 1992. On March 23, 1992, this court ordered that the issue would be returned to Judge Motley for determination. The documents in question were submitted to the court for in camera inspection.
A hearing was held on April 16, 1992 on both the documents and deposition disputes. The issues to be decided are: (1) whether defendants were justified in withholding or redacting the requested documents on the ground of deliberative process privilege and/or attorney-client privilege; and (2) whether counsel for the defendants was justified in directing Commissioner Hanley not to respond to a number of questions under the claim of deliberative process privilege.
II. The Deliberative Process Privilege.
In a case presenting both federal and pendant state substantive law claims, such as this case, "principles of federal law" govern the assertion of evidentiary privileges. Von Bulow v. Von Bulow, 811 F.2d 136, 141-42 (2d Cir.), cert. denied, 481 U.S. 1015, 107 S. Ct. 1891, 95 L. Ed. 2d 498 (1987); see State of New York v. Cedar Park Concrete Corp., 130 F.R.D. 16, 21 (S.D.N.Y. 1990). See also Federal Rule of Evidence 501.
The federal deliberative process, or executive, privilege "protects the decisionmaking processes of the executive branch in order to safeguard the quality and integrity of governmental decisions." Hopkins v. United States Dep't of Housing and Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991); see... NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150, 44 L. Ed. 2d 29, 95 S. Ct. 1504 (1975); Mary Imogene Bassett Hospital v. Sullivan, 136 F.R.D. 42, 44 (S.D.N.Y. 1991). The privilege is premised upon the assumption that "effective and efficient governmental decision making requires a free flow of ideas among government officials and that inhibitions will result if officials know that their communications may be revealed to outsiders." In re Franklin Nat'l Bank Sec. Litig., 478 F. Supp. 577, 580-81 (E.D.N.Y. 1979); see Archer v. Cirrincione, 722 F. Supp. 1118, 1122 (S.D.N.Y. 1989).
The deliberative process privilege applies to governmental communications that are (1) predecisional and (2) deliberative. See Hopkins, 929 F.2d at 84; Mary Imogene, 136 F.R.D. at 44; Archer, 722 F. Supp. at 1122. In order to qualify as "deliberative," a communication must be indicative of the thought processes of governmental actors. See Local 3, IBEW, AFL-CIO v. NLRB, 845 F.2d 1177, 1180 (2d Cir. 1988); Archer, 722 F. Supp. at 1122. See also Hopkins, 929 F.2d at 84 (communications must be "'deliberative,' that is, 'actually . . . related to the process by which policies are formulated.'").
A. The Documents Requested.
In this case, the documents withheld or redacted by the defendants on the ground of deliberative process privilege clearly satisfy the test set forth above. Ten of the twelve documents at issue (items 1-2, 4-11) are predecisional, having been generated before a final decision had been reached with respect to the subject matter of the communication. Those ten documents are also deliberative, memorializing communications among and within City agencies concerning policy issues and alternatives with respect to managerial salaries, benefits and employee/employer relations. Each expresses ideas or transmits recommendations to a governmental decisionmaker for the purpose of aiding that decisionmaker in arriving at a policy decision.
Item 12 consists of drafts of a report by the New York City Managerial Review Commission, an agency composed of public and private sector management experts which advises the Mayor on issues concerning the City's managerial work force. These drafts are also protected by the deliberative process privilege since they embody the ideas that went ...