Document Nos. 125, 129, 134, 135, 137, 150
MEMORANDUM OPINION GRANTING THE PLAINTIFFS' MOTION TO COMPEL; DENYING OTHER PENDING DISCOVERY MOTIONS; AND DIRECTING THE PARTIES TO SUBMIT A REVISED JOINT STATUS REPORT
This matter comes before the court on the plaintiffs' motion to compel the testimony of Navy chaplain selection-board personnel. The plaintiffs, current and former Navy chaplains, bring this suit against the Secretary, other Navy officials, and the Navy alleging that the Navy's policies and practices – including the selection-board process – favor liturgical Christians over non-liturgical Christians in violation of the First and Fifth Amendments to the Constitution. The plaintiffs now wish to depose former members of chaplain selection boards. The defendants contend that the requested testimony is not relevant and assert the deliberative-process privilege as well as an absolute or qualified statutory privilege. Because the requested testimony is relevant, the deliberative-process privilege does not apply, and no statutory privilege exists, the court grants the plaintiffs' motion. The court also denies other pending discovery motions and directs the parties to submit a revised joint status report.
The plaintiffs in this case allege that the Navy has established, promoted, and maintained religious quotas and other discriminatory practices in the Navy Chaplain Corps in violation of the First and Fifth Amendments. Second Am. Compl. at 2. According to the plaintiffs, until the 1980s, the Navy hired chaplains from various faith groups based on objective criteria, such as the relative percentage a religion represented in the total American population. Id. at 23-24. In response to a shift in America's religious demographics away from liturgical Protestant denominations and toward non-liturgical Christian faith groups, however, the Navy allegedly abandoned its objective criteria and adopted a subjective"thirds policy." Id. at 24. Under the thirds policy, the Navy allegedly reserved one-third of its Chaplain Corps slots for Catholics, one-third for liturgical Protestants, and one-third for members of all other religions (including non-liturgical Christians). Id.
According to the plaintiffs, the Navy applied the thirds policy not only to accessions,*fn2 but to promotions and retentions. Id. at 25. To identify officers for promotion and early retirement, the Navy uses selection boards that evaluate a chaplain's capacity and potential for further service. Id. at 28, 30 (citing 10 U.S.C. § 612 et seq. ). The plaintiffs allege that to maintain liturgical control of the Chaplain Corps, the Navy uses the promotion and early retirement selection boards to diminish non-liturgical chaplains' opportunity for promotion and to"thin down" the number of non-liturgical chaplains at the higher ranks by forcing them out of service. Id. at 24, 28, 32-33. In support of their allegations, the plaintiffs set forth various statistics and anecdotal evidence. E.g., id. at 4-9, 14-17, 19-20, Exs. 2-4, 6. The plaintiffs also point to a 1995 report ("the Ellis Report") noting a"clear" and"disconcerting" institutional bias against nonliturgical chaplains in key Navy positions and a 1997 report ("the Stafford Report") indicating that one promotion board"may have systematically applied a denominational quota system, perhaps to ensure balanced denominational representation across the Chaplain Corps." Id. at 26-27, 32, Exs. 5, 8.
The plaintiffs filed their complaint in November 1999. Two years later, in January 2001, the court's Calendar Committee transferred this case and the related case of Adair v. Johnson, Civil Action No. 00-0566, to this member of the court. On January 10, 2002, the court issued a comprehensive memorandum opinion granting in part and denying in part the defendants' motion to dismiss both consolidated cases. Adair v. England, 183 F. Supp. 2d 31 (D.D.C. 2002). The court concluded, inter alia, that the plaintiffs had successfully stated a claim that the defendants' policies and practices violated the Constitution.*fn3 Id.
On October 29, 2002, the plaintiffs filed their motion to compel the testimony of Navy chaplain selection-board personnel.*fn4 They contend that the testimony of selection-board personnel is material to their claims, but that the Navy has refused to allow such personnel to testify on the grounds that the proceedings of a selection board"may not be disclosed to any person not a member of the board." Pls.' Mot. to Compel ("Pls.' Mot.") at 1 (citing 10 U.S.C. § 618(f)). On May 1, 2003, the plaintiffs filed a motion asking the court to find that the defendants have waived their opposition to the plaintiffs' motion to compel, or, in the alternative, to allow them to file their waiver motion as a supplemental pleading.*fn5 Pls.' Waiver Mot. The plaintiffs also filed a motion to alter the limits for the number of depositions and interrogatories, motions to refer the motion to alter and future discovery motions to a magistrate judge, and a motion to vacate existing discovery dates. The court turns first to the plaintiffs' motion to compel, and then to the remaining discovery motions.
A. Legal Standard for a Motion to Compel *fn6
Under Federal Rule of Civil Procedure 37(a), a party may move the court in which the action is pending for an order compelling disclosure. FED. R. CIV. P. 37(a). The party must certify that the movant has conferred in good faith with the party refusing disclosure in an effort to avoid court action. Id. If the court grants the motion to compel, the court"shall, after affording an opportunity to be heard, require the party... whose conduct necessitated the motion... to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees." Id. 37(a)(4); see also Standing Order ¶ 9. This award of expenses is intended to"deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine dispute exists." Cobell v. Norton (" Cobell I"), 213 F.R.D. 16, 29 (D.D.C. 2003) (quoting FED. R. CIV. P. 37(a)(4) advisory committee's note).
A court may not award Rule 37 expenses, however, if it finds, inter alia, that"the opposing party's nondisclosure, response, or objection was substantially justified." FED. R. CIV. P. 37(a)(4). An opposing party's objection qualifies as"substantially justified" if"there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action." Pierce v. Underwood, 487 U.S. 552, 565 (1988); Cobell v. Norton ("Cobell II"), 213 F.R.D. 48, 61 (D.D.C. 2003); see also 8A FED. PRAC. & PROC. § 2288 (stating that an objection to a motion is substantially justified"if the motion raised an issue about which reasonable people could genuinely differ on whether a party was bound to comply with a discovery rule"); accord Pub. Citizen Health Research Group v. Young, 909 F.2d 546, 552 (D.C. Cir. 1990) (stating, in the context of the Equal Access to Justice Act, that the question"is whether there was a reasonable basis in fact and law for the government's litigating position").
A trial court enjoys broad discretion in choosing a sanction under Rule 37. Sturgis v. Am. Ass'n of Retired Persons, 1993 WL 518447, at *1 (D.C. Cir. 1993) (per curiam). That said,"[t]he central requirement of Rule 37 is that any sanction must be just." Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996).
B. The Parties' Arguments
The defendants advance three arguments in opposition to the plaintiffs' motion to compel. First, the defendants argue that the testimony the plaintiffs seek is not relevant in light of the statistical evidence before the court, and thus is not discoverable under Federal Rule of Civil Procedure 26(b). Defs.' Opp'n at 5-16 (citing FED. R. CIV. P. 26(b)(1)). Second, the defendants contend that even if the requested testimony is relevant, it is absolutely protected from disclosure pursuant to 10 U.S.C. § 618(f), the statute barring disclosure of selection-board deliberations. Id. at 16-19. Finally, the defendants state that even if section 618(f) does not act as an absolute bar to discovery, the requested testimony is protected by a qualified statutory privilege or the ...