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Nanticoke Lenni-Lenape Tribal Nation v. Porrino

United States District Court, D. New Jersey

September 19, 2017

CHRISTOPHER S. PORRINO, Attorney General of New Jersey, In His Official Capacity, Defendant.



         Plaintiff, the Nanticoke Lenni-Lenape Tribal Nation, claims the State of New Jersey unlawfully repudiated its recognition as an American Indian Tribe. This Opinion addresses whether certain documents designated by defendant are protected from discovery by the attorney-client and deliberative process privileges.[1] For the reasons to be discussed, defendant's privilege assertions are granted in part and denied in part.[2]


         The plaintiff is the Nanticoke Lenni-Lenape Tribal Nation. Plaintiff filed its complaint on July 20, 2015, its first amended complaint on October 19, 2015, and its second amended complaint on May 5, 2016. On October 27, 2016, the Honorable Renée Marie Bumb granted in part and denied in part defendant's motion to dismiss the second amended complaint. See Lenni-Lenape v. Lougy, C.A. No. 15-5645 (RMB/JS), 2016 WL 6393802 (D.N.J. Oct. 27, 2016). The case is now at the tail end of document discovery and depositions will commence after this motion is decided.

         In a nutshell, plaintiff alleges the State of New Jersey recognized it as an official New Jersey tribe as early as 1982 and then repudiated the recognition. Plaintiff's argument is not derived from whole cloth. In 1982, the State Legislature adopted a concurrent resolution, “officially recognize[ing] plaintiff as an American Indian Tribe.” Nanticoke Lenni-Lenape Tribal Nation v. Hoffman (“Hoffman”), 2017 WL 2919182 at *1 (App. Div. July 10, 2017).[3] After the resolution was passed, plaintiff received benefits under different federal statutes and programs based on New Jersey's recognition of plaintiff as an American Indian Tribe. Id. Plaintiff also relies upon the September 9, 1992 letter written by the New Jersey Director of Ethnic Affairs from the Office of the Governor, addressed to the General Manager, Indian Arts and Crafts Board, U.S. Dept. of the Interior, which states:

Governor Florio has asked me to respond to your recent letter about the status of state-recognized Indian tribes in New Jersey.
The New Jersey State Legislature … is the law-making body that is responsible for the legal recognition of Indian tribes. Formal recognition is accomplished by State Resolutions, which remain in effect until rescinded.
To date, three tribes have been recognized…. [T]he Nanticoke Lenni-Lenape Tribe was recognized by the Senate in 1981.[4]

         Despite this history, plaintiff argues the State backtracked when on December 14, 2001, the Director of New Jersey's Division of Gaming Enforcement (“DGE”) wrote to the Indian Arts and Crafts Board and stated: “the State has not enacted any statute for the specific purpose of officially recognizing any Indian group as a tribe.” The Director also wrote that New Jersey's resolutions do not “officially recognize” plaintiff as a tribe…. They do not demonstrate a legislative design to formally acknowledge a tribe's existence as a domestic independent nation with tribal sovereignty or to deal with the group in a special relationship or a government to government basis.” As a result of the December 14, 2001 letter, plaintiff has lost benefits and recognition that it enjoyed for years. Plaintiff's subsequent efforts to get the State to change and modify its position were unsuccessful. Plaintiff then resorted to the state and federal courts for relief.

         The Honorable Renée Marie Bumb's October 27, 2017 Opinion granting and denying in part defendant's motion to dismiss ruled plaintiff presented two viable claims. First, plaintiff may proceed on its claim it was denied procedural due process. The Opinion noted:

In this case, Plaintiff has alleged that no process whatsoever was provided prior to the loss of their property interest…. Simply put, as alleged by Plaintiff, one day they were a state-recognized tribe (and had been for decades), and the next day-with the swipe of pen and an absence of due process-they were not.

2016 WL 6393802, at *13. Second, Judge Bumb ruled plaintiff could proceed on its equal protection claim.

Here, Plaintiff has alleged they were targeted for the revocation of their state recognition by Defendant because of a stereotypical belief concerning Native Americans and their gaming rights…. Their conversations with Defendant concerning this decision appear to have irrationally focused not on whether the Defendant was proper in adopting an about-face on their state recognition, but rather on whether state recognition would give the tribe a pathway to gaming…. Viewed in the light most favorable to Plaintiff, Plaintiff has stated a cause of action for violation of its equal protection rights.

Id. at *15. Obviously, the Court's ruling frames the scope of permissible discovery in the case. Fed.R.Civ.P. 26(b)(1)(“Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]”).

         Turning to the documents at issue, they cover two general subject areas. The first general area consists of analyses and discussion of proposed (but not adopted) legislation and its impact, inter alia, on whether plaintiff was or could be recognized in some capacity as an American Indian Tribe of New Jersey. The second general subject area consists of analyses and discussion of whether the State “officially recognized” plaintiff as an American Indian Tribe from New Jersey. Also included is some discussion of tribal gaming issues. Several types of documents are at issue including “Bill Analysis” with associated internal memos, various internal memos, legal memos, draft letters to third parties, emails and miscellaneous documents.

         Defendant makes several arguments as to why its documents are not discoverable: (1) the documents are not relevant under Fed.R.Civ.P. 26(b)(1); (2) the discovery is not proportional; (3) the documents are protected by the attorney-client privilege, and (4) the documents are protected by the deliberative process privilege. Defendant makes a separate argument that its draft letters are irrelevant and privileged.

         Not unexpectedly, plaintiff opposes defendant's relevance and proportionality arguments. Plaintiff also argues defendant's Gaming Division documents are not protected by the attorney-client privilege because the Gaming Division has no statutory role in state tribal recognition and, therefore, its communications were not made for the purpose of rendering legal opinions or analysis. In addition, plaintiff argues draft documents intended for production to third parties are not privileged.


         1. Relevancy and Proportionality

         Defendant's relevancy and proportionality arguments are rejected out of hand. As the parties know, Fed.R.Civ.P. 26(b)(1) provides that parties may obtain discovery regarding any non-privileged matter relevant to any party's claim or defense and proportional to the needs of the case. The documents at issue are unquestionably relevant to key issues in the case. The documents address and discuss New Jersey's tribal recognition history and the State's seemingly inconsistent positions. These topics are plainly relevant to plaintiff's procedural due process claim and its argument that defendant acted in an arbitrary and capricious manner. The documents also touch on the DGE's involvement in tribal recognition issues. This topic is directly relevant to plaintiff's equal protection claim and plaintiff's contention that defendant relied on “pernicious racial stereotypes” when it developed policies related to plaintiff.

         Defendant's relevancy objection is based on a false premise. Defendant essentially argues the only issue in the case is whether plaintiff was “officially recognized.” Defendant further argues that since its internal documents cannot confer this recognition, they are irrelevant. (“Quite simply, internal memoranda and correspondence prepared by lawyers within the Attorney General's Office cannot constitute official State recognition of a putative Native American Tribe or the repudiation thereof.” Defendant's Brief (“DB”) at 9). Defendant, however, ignores plaintiff's procedural due process and equal protection claims that survived its motion to dismiss. Not only is the fact of plaintiff's recognition a relevant issue, but so too is the manner in which the State made the decision and why.

         Defendant's argument that its “draft” letters and memos are irrelevant is also misguided. (“Quite simply, a draft letter prepared by a lawyer within the Attorney General's Office cannot constitute official State recognition of a putative Native American Tribe or have any bearing on the outcome of this dispute.” DB at 16). For the reasons just stated, defendant is wrong. Draft letters certainly may bear on whether recognition was granted and if not why not.

         Defendant's proportionality objection also carries no weight as the relevant factors to consider favor plaintiff. The issues in the case are enormously important to plaintiff as they significantly impact plaintiff's livelihood. Further, the requested documents are not available from another source. In addition, the documents are relevant to core issues in the case. Further, there is no material burden or expense to defendant to produce the relatively small number of documents at issue since they have already been collected and are available to produce.

         Having rejected defendant's relevancy and proportionality objections, whether defendant's documents should be produced depends on whether they are privileged and, if so, if the privilege should be pierced.

         2. Attorney-Client and Deliberative Process Privileges

         The gravamen of defendant's objections is that its documents are protected the by the attorney-client and deliberative process privileges. The Court will proceed to discuss the general principles that apply to these privileges. The Court will then apply the principles to defendant's documents to decide if they are privileged.

         A. Attorney-Client Privilege

         The burden of establishing that a document is privileged is on the party asserting the privilege. Torres v. Kuzniasz, 936 F.Supp. 1201, 1208 (D.N.J. 1996). The attorney-client privilege protects communications when: (1) the asserted holder of the privilege is or sought to become a client, (2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with the communication is acting as a lawyer, (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and (d) not for the purpose of committing a crime or tort, and (4) the privilege has been (a) claimed and (b) not waived by the client. Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 862 (3d Cir. 1994).

         The attorney-client privilege does not apply just because a statement was made by or to an attorney. Thus, the mere fact that a lawyer authors or receives a document does not prove it is privileged. Spiniello Companies v. Hartford Fire Insurance Company, C.A. No. 07-cv-2689 (DMC), 2008 WL 2775643, at *2 (D.N.J. July 14, 2008)(simply copying or “cc'ing” an attorney on an email is not enough to establish a privilege); Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 633 (M.D. Pa. 1997)(“What would otherwise be routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is ‘copied in' on correspondence or memoranda”). This makes perfect sense because otherwise parties could facilely avoid producing relevant discovery by simply copying an attorney on every document. See Orion Corp. v. Sun Pharmaceutical Industries, Ltd., C.A. Nos. 07-5436 (MLC), 08-5545 (MLC), 2010 WL 686545, at *8 (D.N.J. Feb. 22, 2010)(“Because the privilege may be employed to obstruct the search for truth, the privilege is not absolute and care must be taken to insure the privilege is not abused”).

         The attorney-client privilege applies to communications and not facts. Rhone-Poulenc Rorer, Inc., 32 F.3d at 862 (“The client … may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney.”)(citation and quotation omitted); see also La Mun. Police Employees Ret. Sys. v. Sealed Air Corp., 253 F.R.D. 300, 305 (D.N.J. 2008)(“In all instances, the facts underlying any given communication remain discoverable”); Upjohn Co. v. U.S., 449 U.S. 383, 395-96 (1976). Instead, “[t]he [attorney-client] privilege protects only those disclosures - necessary to obtain informed legal advice - which might not have been made absent the privilege.” Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F.2d 1414, 1423- 24 (3d Cir. 1991) (citation, quotation and emphasis omitted); see also Fisher v. United States, 425 U.S. 391, 403 (1976).

         An attorney who is not performing legal services or relaying legal advice and who performs non-legal duties does not qualify for the privilege. Payton v. New Jersey Turnpike Authority, 148 N.J. 524, 550-51 (1997); Fredericks v. Atlantic City Bd. of Educ., C.A. No. 08-3082 (RBK/JS) 2010 WL 3429605, at *5 n.6 (D.N.J. Aug. 26, 2010)(not infrequently lawyers are engaged to perform non-legal services); see also Ellerstein v. Herman Body Co., 23 N.J. 348, 352 (1957), adopting the lower Court's ruling that if an attorney “is engaged for the rendition of work which inherently is not the practices of law and his knowledge of law may along the line come into play, the engagement is for non-legal work.” This is true even if litigation may arise from the subject of the attorney's activities. Payton, 148 N.J. at 551.

         B. Deliberative Process Privilege[5]

         When a plaintiff's claim is based on federal law, like here, the issues concerning privilege are governed by federal common law. See Fed.R.Evid. 501. Federal common law recognizes the deliberative process privilege. U.S. v. Pechiney Plastics Packaging, Inc., C.A. No. 09-5692 (PGS), 2013 WL 1163514, at *13 (D.N.J. March 19, 2013). The deliberative process privilege protects communications that are part of the decision-making process of a government agency. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150-152 (1975). The privilege “prevent[s] injury to the quality of agency decisions which could result from premature or indiscriminate disclosure of deliberations comprising part of a process by which government decisions and policies are formulated.” Delaware Riverkeeper Network v. Delaware River Basin Com'n, 300 F.R.D. 207, 210 (D.N.J. 2014)(citation and quotation omitted).

         A party's assertion of the deliberative process privilege requires a two-step review in the district court. First, it must be decided whether the communications at issue are privileged. Second, the court must balance the parties' interests. Redland Soccer Club, Inc. v. Department of Army of U.S., 55 F.3d 827, 854 (3d Cir. 1995). The initial burden of showing the privilege applies is on the government. Id. Further, like other executive privileges, the deliberative process privilege should be narrowly construed. Id. at 856.

         In order to be privileged, the material sought to be protected must be pre-decisional and deliberative. Abdelfattah v. United States Dept. of Homeland Sec., 488 F.3d 178, 183 (3d Cir. 2007). Pre-decisional documents “must concern an anticipated agency decision and have been generated prior to the actual decision being reached; it cannot involve a communication concerning the decision made after the decision has already been adopted.” Delaware Riverkeeper, 300 F.R.D. at 211 (citation and quotation omitted). In order to be deliberative a document must contain “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” Id. A document that reflects the writer's personal opinions rather than the policy of the agency is also protected. Otherwise, disclosure could inaccurately reflect or prematurely disclose the views of the agency rather than a personal opinion. Id. In sum, therefore, “[a] document is predecisional if it was drafted to aid a decision maker in reaching his or her decision, and it is deliberative if it reflects the give[]-and-take of the consultative process.” Qatanani v. Department of Justice, C.A. Nos. 12-4042(KSH)(CLW), 12-5379 (KSH)(CLW), 2015 WL 1472227, at *8 (D.N.J. March 31, 2015).

         The deliberative process privilege is not absolute. Redland Soccer Club, 55 F.3d at 854. The privilege does not protect factual information, even if such information is contained in an otherwise protectable document, as long as the information is severable. Id.; see also U.S.S.E.C. v. Sentinel Mgmt. Grp., Inc., No. 07 C 4684, 2010 WL 4977220, at *3 (N.D. Ill.Dec. 2, 2010)(internal citations omitted)(“Discussion of objective facts as opposed to opinions and recommendations, generally is not protected by the deliberative process privilege.”) However, “[w]hile factual information is generally not exempt from disclosure, in certain circumstances, purely factual material is presented in a manner such that its release in itself would compromise the deliberative process.” Novo Labs v. F.T.C., C.A. No. 80-1989, 1981 WL 2214, at *4 (D.D.C. July 21, 1981)(citing Mead Data Central Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)); Montrose Chem. Corp. v. Train, 491 F.2d 63, 68 (D.C. Cir. 1974); see also F.T.C. v. Hope Now Modifications, LLC, C.A. No. 09-1204 (JBS/JS), 2011 WL 2634029, at *3 (D.N.J. July 5, 2011)(“[P]urely factual information must be segregated from deliberative material and produced unless it is inextricably intertwined with the privileged material or would itself reveal the deliberative process”)(citation and quotation omitted).

         As noted, the deliberative process privilege is qualified. Redland, 55 F.3d at 854. If the privilege applies the party requesting documents may attempt to show that its need for the documents outweighs the government's interest in non-disclosure. Relevant factors to consider are (1) the relevance of the requested documents, (2) the availability of other evidence, (3) the seriousness of the litigation and issues involved; (4) the role of the government in the litigation; and (5) the potential for inhibiting candor by government employees resulting from the disclosure. Id.[6]

         3. Defendant's Documents

         For ease of analysis the Court will address defendant's documents by category. These are: (1) Bill Analyses, (2) legal memos, (3) draft letters to Meridith Stanton with associated cover memos, (4) internal memos, and (5) miscellaneous.

         A. Bill Analyses

         In the 2001-2002 time period several bills were proposed to address Indian issues. They include Assembly Bill (“AB”) No. 2957, introduced on November 9, 2000, AB No. 2292, introduced on May 9, 2002, and Assembly Substitute No. 2292, introduction date unknown. The content and impact of these Bills were discussed in memos exchanged between and amongst personnel from the DGE and various personnel in the Department of Law and Public Safety, including Legislative Analysts, Assistant Attorney Generals and the Attorney General. The bulk of the bill analyses were done by DAG Beverly Tanenhaus, Esquire, from the DGE. The Court finds these documents are protected from discovery by the deliberative process privilege.[7]

         The focus of these documents is whether the Department of Law and Public Safety should support or oppose the proposed legislation. The documents are protected by the deliberative process privilege because: (1) the documents are pre-decisional and deliberative in the sense that they address whether the Department should support or oppose the proposed legislation, a decision that had not yet been made, (2) the documents involve advisory opinions and recommendations about how the Department should act, and (3) the documents do not contain primarily factual material, and to the extent facts are mentioned they are already in the record.

         The Court disagrees with plaintiff that its interest in production of these documents outweighs defendant's interest in non-disclosure. Recognizing that the deliberative process privilege is qualified, and applying the relevant factors to consider, the Court does not find that plaintiff's interests outweigh those of the State. There is no question this is a significant case with important implications for plaintiff. However, in the Court's judgment these documents are not materially relevant to the core issues in the case. The case focuses on the State's past legislative and executive actions. The case does not focus on proposed legislation that was not passed. The reasons expressed in the Department's documents for or against the proposed legislation will not, in the Court's judgment, have a material impact on the outcome of the case. ...

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