The Deliberative-Process Privilege and Its Effect on Discovery

This article by Langdon Ryan Worley appeared in DRI’s Trial Tactics magazine in March 2018.

With the recent advent of medical review panels, and increased discussion of peer review in several states, it has the potential to become an increasingly pertinent topic in litigation.

While immunity from suit is a topic frequently encountered in civil litigation, the protection extended to certain officials regarding the basis of and reasoning for their decisions, and the documentation reflecting them, is rarely discussed. This is surprising in light of the rich and culturally significant role that the deliberative-process doctrine has played in many of our country’s major historical events, and particularly, its scandals. Perhaps this is because such a privilege seems to be simply a common sense extension of our laws regarding immunity. However, the issue does arise, and with the recent advent of medical review panels, and increased discussion of peer review in several states, it has the potential to become an increasingly pertinent topic in litigation.

Background

The absolute immunity of judicial officers when acting within their jurisdiction has a long and well-established common law history. See Stump v. Sparkman, 435 U.S. 349, 355–56 (1978) (overviewing common law history of judicial immunity). Precedent in the majority of state jurisdictions similarly recognizes absolute judicial immunity and has cited Stump approvingly regarding that doctrine. See Burk v. State, 156 P.3d 53 (Ariz. 2007)(“Under the doctrine of judicial immunity, judges are absolutely immune from damages lawsuits for their judicial acts, even when such acts are in excess of their jurisdiction or are alleged to have been done maliciously or corruptly.”). See also Baker v. Fletcher, 204 S.W.3d 589, 594 (Ky. 2006) (“[A] judge or chief-executive enjoys absolute immunity for actions taken in official capacities while in office.”).

More significantly, many jurisdictions, including Kentucky, Florida, California, and a host of others, have extended their absolute judicial immunity doctrines to administrative bodies exercising quasi-judicial functions. See Compton v. Romans, 869 S.W.2d 24, 26 (Ky. 1993) (“It is also recognized that administrative bodies in exercise of quasi-judicial powers imposed upon them by statute may also have absolute immunity.”); Zoba v. City of Coral Springs, 189 So.3d 888 (Fla. Dist. Ct. App. 2016); Howard v. Drapkin, 222 Cal. App. 3d 843 (Cal. App. Ct. 1990).

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