The opinion of the court was delivered by: Wall, Magistrate Judge
Before the court is plaintiff Martin Tankleff's motion to compel compliance with a subpoena served on the non-party New York Office of the Attorney General ("OAG") concerning documents for which the OAG claims privilege. See Docket Entry ("DE") . The OAG opposes the motion, and in addition to the papers submitted in direct response to the motion, "incorporates" its January 15, 2010 letter to plaintiff's counsel, see DE [30-3], as part of its opposition. By Order dated June 24, 2010, that part of the motion concerning production of Grand Jury minutes was denied without prejudice to renew, and plaintiff was directed to first seek an order from the state court concerning those materials. Order of 6/24/10, DE . The OAG was further directed to produce the non-Grand Jury materials at issue for an in camera review, which it has done. The OAG has also submitted a privilege log in connection with the withheld materials. Upon review of the documents and for the reasons set forth herein, plaintiff's motion to compel production of the non-Grand Jury materials is granted to the extent indicated below.
Familiarity with the subject matter of this litigation is assumed. Plaintiff served a non-party subpoena on the OAG seeking production of documents relating to the OAG's investigations of the murders of Arlene and Seymour Tankleff, and to the investigation of their son, Martin, as a suspect in that crime. The OAG claims several types of privilege against production of the materials at issue, specifically, deliberative process, law enforcement, and common-law work product.*fn1 There is also discussion regarding the Special Prosecutor's "special need." Contrary to plaintiff's characterization, however, the OAG does not assert this as a separate privilege but rather "as a factor that should be considered in assessing the other privileges asserted." OAG Mem. at 17. Without citation to any authority, the OAG argues that "Special Prosecutors are frequently appointed by the Governor in highly charged and sensitive cases in which it is especially important to assure the confidentiality of witnesses and to encourage candor and efficiency on the investigating team." OAG Mem. at 17. As suggested by the OAG, I have considered this as another factor and not as a separate privilege.
I. Deliberative Process Privilege
The OAG claims that its "intra-office memoranda, e-mails and notes that preceded the determination of the OAG's ultimate position and that contain interpretations of evidence and policy considerations" are covered by the deliberative process privilege. 1/15/10 ltr. at 3. The deliberative process privilege is a qualified privilege that protects "documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." Tigue v.United States Dep't of Justice, 312 F.3d 70, 76 (2d Cir. 2002). It is "designed to promote the quality of agency decisions by preserving and encouraging candid discussion between officials." Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 356 (2d Cir. 2005). The privilege "protects the decision making processes of the executive branch of the government from discovery in civil actions." Cruz v. Kennedy, 1998 WL 689946, at *8 (S.D.N.Y. Sept. 30, 1998). It should be invoked "only in the context of communications designed to directly contribute to the formulation of important public policy." Nat'l Cong. for Puerto Rican Rights ex rel. Perez v. City of New York, 194 F.R.D. 88, 95 (S.D.N.Y. 2000).
To be protected, the document must be both (1) predecisional and (2) deliberative. To be "predecisional," the document must be prepared to assist a decisionmaker in arriving at his decision, not a postdecisional document that states why the decision was made. It does not protect factual observations, findings or conclusions. A document is predecisional "if the agency can '(i) pinpoint the specific agency decision to which the document correlates, (ii) establish that its author prepared the document for the purpose of assisting the agency official charged with making the agency decision, and (iii) verify that the document precedes, in temporal sequence, the decision to which it relates.'" Tummino v. Von Eschenbach, 2006 U.S. Dist. LEXIS 81286, at *24 (E.D.N.Y. Nov. 6, 2006) (quoting Nat'l Cong. for Puerto Rican Rights, 194 F.R.D. at 92) (additional citations omitted).
In addition, the document must be deliberative, "that is, 'actually related to the process by which policies are actually formulated.'" Hopkins v. United States Dep't of Hous. & Urban Dev., 929 F.2d 81, 84 (2d Cir. 1991)(quoting Jordan v. United States Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). The privilege "does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment." Tigue, 312 F.3d at 80 (quoting Grand Cent. P'ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999)).
Finally, "the deliberative process privilege is qualified; it may be overcome by a showing of need, which is determined on a case by case basis." In re Grand Jury Subpoena Dated Aug. 9, 2000, 218 F. Supp. 2d 544, 553 (S.D.N.Y. 2002). Indeed, the "deliberative process privilege has even been called discretionary." Id. As a qualified privilege, the court must weigh "'(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the 'seriousness' of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possibility of future timidity by government employees who will be forced to recognize that their secrets are violable.'" Rodriguez v. Pataki, 280 F. Supp. 2d 89, 100-01 (S.D.N.Y.), aff'd 293 F. Supp. 2d 302 (S.D.N.Y. 2003)(quoting In re Franklin Nat'l Bank Secs. Litig., 478 F. Supp. 577, 583 (E.D.N.Y. 1979)).
The OAG claims that in light of the "serious law enforcement issues" and the "substantial attention the Tankleff case received both before and after his convictions were vacated," the OAG "reasonably regarded their work to be of great importance to future public policy in the State." OAG Mem. at 10. This seems to raise the question of whether the internal ruminations of the OAG on a single, albeit notorious, investigation can constitute "formulation of public policy." OAG has not addressed the 'policy' aspect of the privilege, and plaintiff discussed it only briefly on reply; neither party has cited a case analogous to a situation such as the one here.
The court finds some similarity in a case involving the need to protect the confidentiality of a prosecutor's decisionmaking in death penalty cases. See, e.g., United States v. Frank, 8 F. Supp. 2d 253 (S.D.N.Y. 1998). In Frank, the court denied production of the "Death Penalty Evaluation" form prepared by the U.S. Attorney as there "are strong policy reasons in favor of keeping confidential the internal deliberative process through which the Government decides whether to use its prosecutorial power to seek the most severe punishment possible" and "[d]iscovery of the deliberative materials would have a chilling effect on the thorough evaluation of these issues and hinder the just, frank, and fair review of the decision for every individual defendant who faces the prospect of receiving a Notice of Intent to Seek the Death Penalty." Id. at 284. Applying the same rationale to a single "high profile" case, however, would be a significant expansion of the law and is not warranted.
"The burden of justifying application of the privilege rests with the party asserting it." Pearson v. City of New York, 2009 WL 3247433, at *2 (E.D.N.Y. Oct. 6, 2009) (citing Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987)). Simply put, the OAG has not satisfied that burden. Even assuming that it did demonstrate that application of the deliberative process privilege is warranted, that privilege is qualified. Weighing the competing interests for and ...