The Delaware Superior Court rejected the state Department of Transportation’s request that it recognize a common-law deliberative process privilege. This rejection came despite the court previously adopting the closely related chief executive communications privilege. State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013). You may access the opinion here.
Figg Bridge Engineers, Inc. contracted with DelDOT to design a new bridge crossing the Indian River Inlet. Figg then subcontracted with AMEC, a geotechnical engineering firm, to conduct an assessment and study
of the roadway and bridge structure. Figg, using AMEC’s study data, designed earthen embankments for the roadway approaches. These embankments later failed causing delays in the bridge-building process.
DelDOT retained an engineering firm (OCL) to investigate, and OCL retained Golder Associates, Inc., a geotechnical engineering firm, to assist. DelDOT later sued Figg and AMEC over AMEC’s alleged errors and omissions, and AMEC subpoenaed documents from non-party Golder. DelDOT opposed the subpoena, arguing that the deliberative process privilege protected Golder’s investigatory documents from discovery.
Deliberative Process Privilege
Often misleadingly called the “executive privilege,” the deliberative process privilege protects from discovery (and public records requests) documents reflecting opinions, recommendations, and deliberations that are part of the governmental agency decision-making process. The privilege protects only documents that are both deliberative—reflecting the back-and-forth of the deliberation process—and predecisional. The privilege is qualified, meaning that a party may overcome the privilege upon a sufficient showing of need.
The court looked to Delaware Rule of Evidence 508(b), accessible here, to determine whether a common-law deliberative process privilege should exist. The court noted that, in Guy v. Judicial Nominating Comm’n, 659 A.2d 777 (Del. 1995), it recognized a common-law evidentiary privilege protecting gubernatorial communications with his staff. But the court noted
that no court had similarly recognized the closely related deliberative process privilege.
The court also found persuasive the New Mexico Supreme Court’s opinion in Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), recognizing a chief executive communications privilege but rejecting a deliberative process privilege. PoP profiled the New Mexico Supreme Court’s ruling in this post, and this one.
Other than concern over the “fundamental unfairness” of permitting executive agencies to avoid producing documents that a private plaintiff would have to produce, the court provided little analysis for its rejection of the deliberative process privilege. The court simply reasoned that it would not apply the privilege because no Delaware precedent supported it.
But the lack of precedent arguably does not close the door to common-law development. Delaware Rule of Evidence 501 provides that evidentiary privileges include those adopted by “court decision.” This language appears as compromise wording combining the Federal Rule of Evidence 501, which permits common law development, and Uniform Rule of Evidence 501, adopted by many states, which does not permit common-law development. New Mexico, the state upon which the Delaware court relied, follows the URE terminology prohibiting common-law privilege development. See N.M.R.A., Rule 11–501.
Delaware’s “court decisions” language essentially means the common law, which allows evolving concepts rather than static, never-changing law. Contrary to New Mexico, Delaware courts have authority to recognize a new privilege or modify an existing privilege should the merits warrant. But the Figg court did not discuss this possibility.