Sikorsky Aircraft Corp. v. United States
106 Fed. Cl. 571
| Fed. Cl. | 2012Background
- Deliberative process privilege protects advisory opinions and deliberations underlying agency decisions.
- This case concerns whether the government’s delay in asserting privilege to claw back Exhibit P waives the privilege.
- Exhibit P is a chain of emails between a DCAA auditor and a supervisor about ongoing audits of Sikorsky for CAS 418/410.
- Exhibit P was produced in February 2011; the government learned of a possible privilege issue at Sikorsky’s deposition in July 2011.
- The government did not notify Sikorsky of the privilege assertion until May 2012, creating a timing dispute about waiver.
- The court must assess whether Exhibit P is pre-decisional and deliberative, and whether any waiver applies under applicable law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government properly invoked the deliberative process privilege | Sikorsky argues proper invocation was lacking due to delayed communication | Government asserts delegation to subordinates and specific identification of materials | Yes; proper delegation and specific identification satisfied requirements |
| Whether Exhibit P is pre-decisional and deliberative | Exhibit P contains mostly factual material that should be disclosed | Exhibit P is intertwined with ongoing audits and contains deliberative commentary | Exhibit P is pre-decisional and deliberative; interconnected with policy-making context |
| Whether the privilege is outweighed by Sikorsky’s evidentiary need | Exhibit P relevant to statute of limitations defense | Other evidence exists; disclosure would harm deliberative process | Balancing favors the government; Exhibit P remains privileged |
| Whether the government waived the privilege by untimely assertion | Delay in asserting privilege constitutes waiver | Timeliness is not dispositive; must consider overall conduct | Waiver found due to undue delay in asserting privilege and communicating to Sikorsky |
Key Cases Cited
- Department of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1 (U.S. 2001) (Deliberative process privilege foundation and scope cited)
- National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975) (Illustrates privilege concepts and public policy balance)
- Pacific Gas & Elec. Co. v. United States, 70 Fed.Cl. 128 (Fed. Cl. 2006) (Pre-decisional/deliberative standard and need for particularity)
- Marriott Int’l Resorts, L.P. v. United States, 437 F.3d 1302 (Fed. Cir. 2006) (Delegation and careful selection of privilege assertions)
- Alpha I, L.P. ex rel. Sands v. United States, 83 Fed.Cl. 279 (Fed. Cl. 2008) (Waiver considerations for deliberative privilege)
- Eden Isle Marina, Inc. v. United States, 89 Fed.Cl. 480 (Fed. Cl. 2009) (Waiver due to inadequate efforts to rectify disclosures)