Many assume that a federal common-law or constitution-based judicial deliberation privilege protects a federal judge’s deliberations, including the judge’s communications with her law clerks, from compelled discovery. This assumption is probably correct, but there is a dearth of law on the privilege and particularly its scope and limitations. This post provides an overview of the current state of the law concerning the federal judicial deliberation privilege.
D.C. Circuit
In various opinions dealing with President Nixon’s executive privilege claims, the United States Supreme Court and the D.C. Circuit Court of Appeals compared, in dicta, the executive privilege to the judicial deliberation privilege.
 See Nixon v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973) (“This privilege, intended to protect the effectiveness of the executive decision-making process, is analogous . . . to that among judges, and between judges and their law clerks.”). But the courts did not fully explain the basis for any judicial deliberation privilege, stating simply that the privilege’s source is “rooted in history” and buttressed by “the constitutional separation of powers of three departments of government.” Id. at 740 (MacKinnon, J. dissenting).
11th Circuit
A decade later, the 11th Circuit Court of Appeals became the first, and only, federal court to formally adopt a judicial deliberation privilege. In Williams v. Mercer, 783 F.2d 1488 (11th Cir. 1986), a case involving the 11th Circuit’s investigation of now-former federal judge Alcee Hastings, the court ruled that “there exists a privilege . . . protecting confidential communications among judges and their staffs in the performance of their judicial duties.” Id. at 1520. The court ruled, however, that the privilege is qualified, not absolute, meaning that a party seeking disclosure of judicial communications may overcome the privilege upon a showing of a “demonstrated need.” Id.
The party seeking the information may prove a “demonstrated need” for judicial communications by showing the importance of the inquiry for which the information is sought, the relevance of the information to the inquiry at issue, and the difficulty of obtaining the information from alternative means. Upon this showing, the court must then weigh the party’s demonstrated need for judicial communications against the degree of intrusion upon the privileged information.
Conflict
The 11th Circuit’s decision that the federal judicial deliberation privilege is qualified conflicts with state-court decisions holding that the privilege is absolute, meaning that, once established, the party seeking the judicial information may not overcome it. In 2012, Massachusetts became the latest state to adopt an absolute judicial deliberation privilege, a decision profiled in an earlier post.
Moreover, the 11th Circuit’s decision came 10 years before the Supreme Court’s decision in Jaffee v. Redmond, 518 U.S. 1 (1996), where the Court provided an outline for the adoption of new common-law evidentiary privileges. One Jaffee guideline suggests reviewing whether states have adopted the privilege; and all states that have considered the issue decided to adopt an absolute judicial deliberation privilege.
So, when would the judicial privilege arise? Some possibilities include legislative subpoenas to judges, judicial misconduct proceedings, civil or post-conviction litigation where the judge is subpoenaed to obtain the basis of prior rulings, subpoenas issued to law clerks, and subpoenas issued to judges in support of a lawyer defending a legal malpractice action.
When faced with a scenario where a party subpoenas a judge or her law clerks to testify about deliberative communications, practitioners should consider arguing that the 11th Circuit’s decision adopting a qualified privilege misses the mark, and that the federal court should follow the states’ lead and adopt an absolute judicial deliberation privilege. And arguing that Jaffee changed the equation 10 years after Williams is perhaps the best start toward accomplishing that goal.