Court Expands Mental Process Privilege for Administrative Law Judges

The Iowa Supreme Court, deciding an issue of first impression, ruled that the mental process privilege applies to administrative law judges under investigation by the State’s Ombudsman’s office. The decision, issued in Office of Citizens’ Aide/Ombudsman v. Edwards, 2012 WL 6217027 (Iowa Dec. 14, 2012), which can be accessed here, expands the mental process privilege for administrative law judges.

Mental Process Privilege

The mental process privilege protects from compelled disclosure the deliberative or mental processes of individuals, most notably administrative law judges, acting in a quasi-judicial capacity.  The privilege’s basis arises from the idea that individuals

Iowa expands mental process privilege

making administrative adjudications must be able to render independent decisions free from external and internal pressures.  And permitting compelled disclosure of an ALJ’s thought processes behind a decision would thwart that concept.  See United States v. Morgan, 313 U.S. 409 (1941); Grant v. Shalala, 989 F.2d 1332 (CTA3 1993) (Alito, J.).  Most courts hold that the privilege is qualified, meaning that it may be overcome upon a sufficient showing of need.


Iowa maintains an Ombudsman’s Office that serves as a watchdog for administrative agencies.  The Ombudsman’s Office opened an investigation into a prisoner-disciplinary decision rendered by an ALJ for the Iowa Department of Corrections (IODC).  The Ombudsman’s Office subpoenaed the ALJ to provide deposition testimony regarding the basis for her decision, but she refused citing the mental process privilege adopted in State ex rel Miller v. DeCoster, 608 N.W.2d 785 (Iowa 2000).


The Ombudsman’s Office argued that the mental process privilege applies only in judicial proceedings and does not extend to investigations into an ALJ’s conduct.  The Iowa Supreme Court disagreed and extended the privilege to administrative investigations so long as the ALJ was acting in a quasi-judicial capacity.  The test whether an administrator functions in a quasi-judicial capacity involves determining (1) whether the questioned act involves a proceeding that requires notice and opportunity to be heard, or (2) whether the administrator determines the parties’ rights by exercising discretion in finding facts and applying the law to those facts.

Here, the IODC ALJ met those conditions, and the Court ruled that the mental process privilege applies during an Ombudsman’s investigation into her conduct.  So, while the Ombudsman may inquire at deposition into procedural steps regarding the questionable decision, he may not inquire into the ALJ’s mental processes behind that decision.

The Court also held that the mental process privilege is qualified.  The party seeking to overcome the privilege must make a “strong showing” of bad faith or improper behavior by the ALJ.  And while the burden does not require the party to conclusively prove bad faith or improper behavior, bare allegations and conclusory statements are insufficient.

Relation to Deliberative Process Privilege and Judicial Deliberative Privilege

The mental process privilege is more akin to deliberative process privilege but is related to the judicial deliberative privilege.  The deliberative process privilege protects from compelled disclosure an administrative agency’s deliberative materials created as part of the agency’s decision-making process.  Like the mental process privilege, the deliberative process privilege is qualified and may be overcome upon a showing of need that outweighs the agency’s need for confidentiality.  See an earlier PoP post analyzing a New Mexico Supreme Court decision on the deliberative process privilege.

The judicial deliberative privilege protects a judge’s mental processes and deliberative thoughts.  This privilege, unlike the mental process privilege, is absolute, not qualified, meaning that once established it cannot be invaded regardless of the level of need.  For a review of the judicial deliberative privilege, see an earlier PoP post discussing the privilege and its recent adoption by the Massachusetts Supreme Court.

Major Decision on Subject Matter Waiver Doctrine 3

In a major decision concerning privilege waiver, the Illinois Supreme Court, in Center Partners, LTD v. Growth Head GP, LLC, ruled that the subject matter waiver doctrine does not apply to privileged communications disclosed in an extrajudicial context.  The Court’s decision, which can be accessed here, answered a question of first impression in Illinois and will serve as influential authority when other states consider the scope of subject matter waiver.

Question at Issue

The precise question before the Court was whether, as a matter of law, the subject matter waiver doctrine applies to the disclosure of privileged information made outside of a litigation or judicial setting (an extrajudicial setting).

Illinois Supreme Court

Illinois Supreme Court

Where a privileged communication is voluntarily disclosed, the subject matter waiver doctrine extends this waiver to all other communications pertaining to the same subject matter.  The purpose of the doctrine is to prevent a party from selectively disclosing favorable information while simultaneously withholding unfavorable information under the cloak of privilege. The question in Center Partners was whether the subject matter doctrine, and its underlying purpose, should apply in non-litigation contexts.

Facts of Case

The Center Partners case involved a complicated business transaction.  In short, three companies negotiated the purchase of  Rodamco North America, N.V., including the General Partner of one of Rodamco’s holdings.  During the purchase negotiations, the purchasing entities and their lawyers exchanged privileged information concerning the legal implications of the transaction, rights and obligations of the parties to the transaction, and legal concerns and conclusions about the structure of a new partnership agreement.  A couple of years after the transaction was complete, a group of minority limited partners sued for breach of contractual and fiduciary duties, and sought all communications actually disclosed between the purchasing entities and all privileged, non-disclosed communications concerning the same subject matter.

Court’s Ruling

In an issue of first impression in Illinois, the Court ruled that the subject matter waiver doctrine does not apply where privileged communications are disclosed in an extrajudicial setting. The Court based its decision in large part on the doctrine’s underlying purpose.  The purpose is to prevent a party from using an evidentiary privilege offensively (sword) to disclose favorable information and later defensively (shield) to withold unfavorable information pertaining to the same subject matter.

The Court reasonsed that, outside the litigation context, parties generally do not decide to disclose privileged information for sword and shield purposes.  In many non-litigation settings, such as business transactions, parties disclose privileged information before litigation is initiated or even contemplated.  And expanding the subject matter waiver doctrine to non-litigation contexts would produce a perverse result: parties may “leave attorneys out of commercial negotiations for fear that their inclusion would later force wholesale disclosure of confidential information.” Consequently, the Court found that the purpose of the subject matter waiver doctrine is simply not served by expanding it to non-litigation contexts.

The Court placed one limitation on its ruling.  It stated that, if a disclosure is made during a business negotiation to gain a later tactical advantage in anticipated litigation, then the subject matter waiver doctrine would still apply if such a disclosure is later used by the disclosing party at any point during the litigation to gain a tactical advantage.

PoP Analysis

Most states have not addressed the issue whether the subject matter waiver doctrine applies in extrajudicial contexts, and this area of evidentiary privileges needs more development.  The Illinois Supreme Court’s decision in Center Partners is based on sound reasoning and will likely serve as persuasive authority when the issue arises in other states.  And while the decision was made in the non-litigation context of business transactions, it will likely serve as persuasive authority for disclosures made in other non-litigation contexts such as disclosures made during settlement negotiations, government investigations, regulatory compliance filings, or for public relations/media purposes.  For a more detailed analysis of these issues, see an earlier PoP post recommending an IADC article by Andrew Kopon and M.C. Sungaila.

Massachusetts Adopts Judicial Deliberative Privilege. Which State is Next? 2

The Supreme Judicial Court of Massachusetts recently ruled what many lawyers and judges assume—that a judicial deliberative privilege exists and protects from compelled disclosure a judge’s deliberative processes and related communications.  With a dearth of federal and state law on the issue, this case may serve as a catalyst for other states to recognize the privilege either through common law or legislative development.  See In the Matter of Enforcement of a Subpoena, 972 N.E.2d 1022 (Mass. 2012).


Suffolk County District Attorney Daniel F. Conley, the chief law enforcement officer for Boston, filed a complaint with the Massachusetts Commission on Judicial Conduct alleging that a Boston Municipal Judge had repeatedly shown bias against the Commonwealth.  The Boston Globe later published articles and editorials about the so-called “let me go” judge and the investigation into his allegedly lenient rulings in criminal proceedings.  As part of the Commission’s investigation, the judge was subpoenaed to a deposition and requested to bring “any notes, notebooks, bench  books, diaries, memoranda, recordation or other written recollections of cases” described in DA Conley’s Complaint. Conley conceded that he sought information regarding the judge’s processes, methodology, and conduct in adjudicating cases before him because it is notoriously elusive and difficult to prove bias.  The judge objected, arguing that a judicial deliberative privilege protects the judge’s deliberative information from compelled disclosure.  No previous Massachusetts court had ruled on the privilege’s existence.


The Supreme Judicial Court formally recognized a judicial deliberative privilege that guards against intrusions into a judge’s deliberative processes.  Although no express Massachusetts authority supported the privilege, the Court ruled that the privilege is deeply rooted in Massachusetts common law and constitutional jurisprudence and in the precedents of the U.S. Supreme Court and the courts of its sister States. In fact, no court to consider a judicial deliberative privilege has rejected it.

The Court ruled that the judicial deliberative privilege is necessary to ensure the finality of judgments, to protect the quality and integrity of judicial decision-making, and to ensure an independent and impartial judiciary.

The judicial deliberative privilege covers a judge’s mental impressions and thought processes in reaching a judicial decision, and protects confidential communications among judges and between judges and their law clerks and other court staff made in the course of and related to their deliberative processes in particular cases.

The privilege does not cover a judge’s memory of nondeliberative events in connection with a particular case, inquiries into whether a judge was subjected to extraneous influences or ex parte communications, or when a judge is a witness to or was personally involved in a circumstance that later becomes the focus of a legal proceeding.

Massachusetts Privilege Differs with Federal Common Law

The Massachusetts court departed from federal common law by ruling that the judicial deliberative privilege is absolute, meaning that a party may not overcome the privilege upon a sufficient showing of need.  The 11th Circuit Court of Appeals has ruled that the federal privilege is qualified and will give way when party seeking the information meets his burden of showing that the importance of the information, its relevance to the particular proceeding, and a difficulty in obtaining the information through alternative means.  Upon this showing, the court must balance the party’s need for the information against the degree of intrusion upon the confidentiality of the privileged communications. See Williams v. Mercer, 783 F.2d 1488, 1521–22 (CTA7 1983).

Other States

Massachusetts now joins Illinois, West Virginia, and Pennsylvania in recognizing a judicial deliberative privilege.  See Thomas v. Page, 837 N.E.2d 483 (Ill. App. Ct. 2005); Kaufman v. Zakaib, 535 S.E.2d 727 (W. Va. 2000); and Leber v. Stretton, 928 A.2d 262 (Pa. Super. 2007).  And a Connecticut Court of Appeals recently upheld, without elaboration but citing the Massachusetts’ opinion, a trial court’s refusal to allow a judge to be cross-examined about this decision-making process.  See Kosiorek v. Smigelski, 138 Conn. App. 695, 2012 WL 4872756 (Conn. Ct. App. Oct. 23, 2012).