OPINION
The court has before it Defendant’s Motion to Compel the Production of Documents and Deposition Testimony Improperly Withheld on the Basis of Privilege (Def.’s Mot. or Motion), PG & E’s Response to Defendant’s Motion to Compel the Production of Documents and Testimony Withheld as Privileged (PL’s Resp. or Response), and Defendant’s Reply to Plaintiffs Response to Defendant’s Motion to Compel the Production of Documents and Deposition Testimony Improperly Withheld on the Basis of Privilege (Def.’s Reply or Reply). Defendant moves the court “to compel the production of documents and deposition testimony improperly withheld by plaintiff ... on the basis of the attorney-client privilege and the work product doctrine.” Def.’s Mot. at 1.
(1) documents related to public regulatory proceedings, including, but not limited to, PG & E’s rate proceedings before the California Public Utilities Commission [(CPUC)], proceedings before the California Coastal Commission [ (CCC) ], and licensing proceedings before the Nuclear Regulatory Commission [ (NRC) ]; (2) memoranda prepared for the Board of Directors which contain business and regulatory information related to the public regulatory proceedings; (3) memoranda, correspondence, and reports drafted by non-lawyer PG & E employees sent to non-lawyer PG & E employees which happen to [provide a courtesy copy (ec) to] PG & E lawyers, among others; (4) memoranda, correspondence, and reports drafted by non-lawyer PG & E employees sent to non-lawyer PG & E employees, as well as counsel, which in the description indicates that the document was “provided at request of counsel”; (5) documents that purport to be attorney-client protected but contain no [indication of] author or recipient; and (6) documents sent to regulatory entities.
Def.’s Mot. at 2. With respect to testimony, defendant states that “PG & E counsel improperly instructed its deponents not to answer questions regarding its damages claim and whether the deponent had discussion with PG & E’s experts, during their depositions,” id., and moves the court to allow defendant to “re-open the depositions of Messrs. Pulley, Womack and Kapus,” id. at 19.
Subsequent to the filing of defendant’s Motion, plaintiff and defendant reached an agreement with respect to most of the documents in categories three, four, five, and six.
1. Documents Related to Public Regulatory Proceedings
A. Summary of the Parties’ Arguments
In its Motion, defendant states that “PG & E has improperly asserted work product privilege over more than two hundred documents that were prepared for presentation before one of several regulatory agencies that are charged with overseeing the operations at PG & E — the [California Public Utilities Commission (CPUC) ], the [Nuclear Regulatory Commission (NRC)], and the [California Coastal Commission (CCC) ].” Def.’s Mot. at 5. These documents, defendant argues, were created as a “neeessar[y] part of the ordinary course of [plaintiff’s] business. The ‘primary motivating purpose’ behind the creation of the documents for these proceedings is not to assist in pending or impending litigation but rather to further PG & E[’]s business ... [by] set[ting] rates, ... licensing] its operations, or ... deal[ing] with its coastal property.” Id. at 8-9. Thus, defendant concludes, “[b]ecause the preparation of these documents was clearly necessary based on public requirements, they are not protected by the work product doctrine and must be produced.” Id. at 8.
After describing why each type of administrative proceeding at issue should be characterized as “litigation” for the purposes of the work product doctrine, see id. at 5-7, plaintiff states that
[t]he government argues that these documents had multiple purpose[s] ... because PG & E’s real interest was the underlying rates or licenses that are the subjects of the proceedings. But this argument is too broad. No plaintiff engages in litigation for the litigation itself. Even here, PG & E’s ultimate objective is obtaining a damages recovery, not engaging in litigation. Nor can the government properly distinguish between a public utilities commission rate case filing or licensing application and the administrative litigation over such filings and applications. Those filings are akin to complaints in litigation before this [c]ourt. The subsequent litigation is all part of a single litigation proceeding.
Id. at 8 (citation omitted). Moreover, plaintiff argues that the documents at issue “do not lose their privileged status simply because such litigation is routine for PG & E.” Id. at 8. Finally, plaintiff asserts that
[t]he government’s claim that the documents are not protected by the work product doctrine because they were created in response to specific regulatory requirements misstates the law and the nature of the documents at issue____ [T]he work product doctrine does not protect material assembled “[ ] pursuant to public requirements unrelated to litigation .... ” Thus, the existence of regulations concerning documents related to administrative litigation does not prevent a document from being protected by the work product doctrine.
Id. at 9 (quoting United States v. El Paso Co.,
In its Reply, defendant argues that
[w]hile PG & E states that the documents it has withheld are documents prepared for administrative proceedings at the CPUC, NRC, and CCC, PG[&]E has failed to meet its burden of establishing that “the primary motivating purpose” behind the creation of the documents was to assist in pending or impending litigation. PG & E has not met its burden because it cannot. The primary motivating purpose behind the creation of this category of withheld documents is to set its rates before the CPUC, to license its operating facilities before the NRC, or to establish permits before the CCC. The Government does not deny that there may be litigation associated with these proceedings. However, ... [t]he test is not whether there may be litigation associated with the submission of documents to regulatory entities, but rather whether the documents were prepared primarily for litigation or alternatively, for some business reason. PG & E has not met this test....
Def.’s Reply at 6. Thus, defendant concludes, “the [c]ourt should order all documents withheld by PG & E that are related to regulatory proceedings before the CPUC, the NRC,
B. Discussion
1. The Work Product Doctrine
The work product doctrine, codified for the United States Court of Federal Claims in Rule 26(b)(3) of the Rules of the Court of Federal Claims (RCFC),
However, the work product doctrine is not an absolute bar to discovery of materials prepared in anticipation of litigation. Work product can be produced
upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s ease and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
RCFC 26(b)(3). Thus, RCFC 26(b)(3)
provides that, even if the party seeking discovery of information otherwise protected by the work product doctrine has made the requisite showing of need and undue hardship, courts must still protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney and his agents. Stated differently, [RCFC] 26(b)(3) establishes two tiers of protection: first, work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship; second, “core” or “opinion” work product that encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation” is “generally afforded near absolute protection from discovery.” Thus, core or opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances.
In re Cendant Corp. Sec. Litig.,
“Like all privileges, the work product doctrine must be strictly construed.” Mims v. Dallas County,
a. In Anticipation of Litigation
“The threshold determination in a case involving a claim of work product privilege is whether the material sought to be protected from discovery was prepared in anticipation of litigation” or was prepared in the ordinary course of business or for other purposes. Allendale Mut. Ins. Co. v. Bull Data Sys., Inc.,
Because the phrase “in anticipation of litigation” “eludes precise definition,” there are “a variety of approaches and conflicting decisions in the case law.” Harper v. Auto-Owners Ins. Co.,
“Under a second approach, the work product doctrine protects a broader category of documents.” In re Raytheon Sec. Litig.,
The formulation of the work-product rule used by the Wright & Miller treatise, and cited by the Third, Fourth, Seventh, Eighth, and D.C. Circuits, is that documents should be deemed prepared “in anticipation of litigation,” and thus within the scope of the Rule, if “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.”
... [I]t should be emphasized that the “because of’ formulation ... withholds protection from documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation. It is well established that [the] work-product privilege does not apply to such documents. Even if such documents might also help in preparation for litigation, they do not qualify for protection because it could not fairly be said that they were created “because of’ actual or impending litigation.
Adlman,
Regardless of whether a court uses the “primary motivating purpose” or the “because of’ approach, “documents that are required to be prepared to comply with the law may not be protected.” In re Raytheon Sec. Litig.,
b. “Litigation”
The determination of what constitutes “litigation” for the purposes of the work product doctrine’s “in anticipation of litigation” formula is an extremely important one, especially in the context of this case. The Restatement (Third) of the Law Governing Lawyers takes a broad view of what constitutes “litigation” for the purposes of the work product doctrine:
Litigation includes civil and criminal trial proceedings, as well as adversarial proceedings before an administrative agency, an arbitration panel or a claims commission, and alternative-dispute-resolution proceedings such as mediation or mini-trial. It also includes a proceeding such as a grand jury or a coroner’s inquiry or an investigative legislative hearing. In general, a proceeding is adversarial when evidence or legal argument is presented by parties contending against each other with respect to legally significant factual issues. Thus, an adversarial rulemaking is litigation for purposes of the immunity.
Restatement (Third) of the Law Governing Lawyers (Restatement) § 87 cmt. h (2000).
“ ‘Adversarialness’ is the touchstone of this approach to the ‘litigation’ question, and a number of courts seem to have followed it to a large degree.” In re Grand Jury Subpoena,
c. Case Law
The court has reviewed numerous persuasive authorities that have considered whether the work product doctrine applies to protect from discovery documents similar in nature to those in dispute in this ease — namely, documents created in preparation for rate-setting, license, or permit application proceedings such as those before the CPUC, NRC, and CCC.
In the securities regulation context, some courts have held that documents prepared for an independent auditor in connection with a publicly held corporation’s efforts to comply with the federal securities laws do not constitute attorney work product because they are created primarily for (or because of, depending on the standard used) the business purpose of preparing financial reports that would satisfy the requirements of the federal securities laws. Gulf Oil Corp.,
The patent application process has also produced a number of helpful cases that carefully analyze what constitutes attorney work product created in anticipation of “litigation.” In McCook Metals L.L.C. v. Alcoa, Inc.,
[i]n th[e Seventh Circuit], preparation of a patent application for prosecution has generally not been held to be in anticipation of litigation, as it is primarily an ex parte administrative, not an adversarial, proceeding. Specific items relating to the patent application process that were not deemed work product included decisions regarding which specifications to include in the patent application, decisions to use certain terms in the original patent application, and technical information from the client to attorney used for the purpose of preparing a patent application.
However, documents produced in preparation for a patent reexamination proceeding when related litigation was subsequently initiated in the federal courts have been held to be made in anticipation of litigation, and thus protected by the work product doctrine. In these cases, the court reasoned that, regardless of whether the reexamination proceeding was initiated by a competitor or the patent holder, “the reexamination proceeding is an adversarial proceeding, similar to ‘litigation[,]’[ ] to which the work product doctrine applies.” Documents prepared for an interference proceeding were also held to be protected.
McCook,
Following this precedent, the McCook court compelled the production of documents created in preparation of defendant’s patent application, but ordered the protection of documents prepared in preparation for appeal to the Board of Patent Appeals and Interferences. Id. at 261. The court explained the adversarial nature of the latter proceedings that persuaded it to deem them “litigation” for the purposes of the work product doctrine:
After the applicant, now called the appellant, has filed his notice of appeal, he has two months to file a brief on the appeal ... in which he must set forth his arguments. The examiner then submits his answer to the appellant’s brief. The appellant may file a reply brief or a request for an oral hearing within one month of the filing of [the] Examiner’s answer. The Board of Patent Appeals and Interferences then arrives at a decision.
Th[is] reexamination proceeding, which has been held to constitute “litigation” for the purposes of the work product doctrine, is similar to the final appeals proceeding [before the Federal Circuit] in that although both are ex parte proceedings, neither is “nowhere nearly as non-adversarial and ex parte as is a typical application for initial issuance of a patent.”
In both the appeal process and the reexamination proceedings, the patent applicant or holder is in a defensive position and in an adversarial relationship to the examiner. Also, in both situations, the attorney is in the position of drafting intricate legal documents, neatly arranging raw technical facts into verbal packages, and practicing the art of a legal wordsmith to persuade the examiner to make a favorable finding for his client. As compared to the initial application request in which the applicant and the examiner are on fairly neutral grounds, the appeal proceeding and the reexamination proceeding force a heightened need of persuasiveness on the part of the attorney, and an increased level of adversity between the applicant and the examiner. All of these are characteristics of litigation.
The [c]ourt finds that an appeal before the Board of Patent Appeals and Interferences, although an ex parte proceeding, is of an adversarial nature sufficient to constitute “litigation[,]”[ ] thus[] warranting application of the work product doctrine to attorney materials made in anticipation*795 thereof. This construction is further supported by the fact that the individual filing the patent application, previously referred to as applicant, is referred to as an appellant after the filing of a notice of appeal. Of course, any appeal thereafter to the Federal Circuit or civil action before the District Court for the District of Columbia would also be protected by the work product doctrine.
Id. at 261-262 (internal citations and quotations omitted).
The Southern District of New York has taken a similar approach with respect to patent application proceedings:
[Documents prepared in contemplation of ex parte proceedings before the [Patent and Trade Office (PTO) ] are not, on that basis alone, entitled to work-product protection. In contrast, if a document is prepared in anticipation of or with an eye to future adversarial administrative proceedings or future litigation, it will be protected, subject of course to the discovering party’s ability to show a pressing need for the document.
Under this approach, even if the document was prepared to address issues in an ex parte patent proceeding, any portions of it that explicitly address the prospect of future litigation or offer an analysis of issues principally pertinent to such a proceeding will be protected.
Golden Trade,
Many courts have analyzed the context of other types of administrative, regulatory, or investigative proceedings to determine whether documents created in preparation of these proceedings are protected under the work product doctrine. In Biddison, the Northern District of Illinois ruled on “whether lawyers’ ‘work product,’ used in its generic sense, generated in the course of preparing an environmental impact statement [(EIS)], should be treated as protected work product.” Biddison,
under normal circumstances, a document generated in connection with the preparation of an EIS should not be treated as work product. The circumstances surrounding the preparation of the EIS in this case, however, counsel a different result. A brief review of the history of this litigation demonstrates that the preparation of the EIS in this case was inextricably bound up with defendants’ defense of a seamless web of litigation, beginning before the preparation of the EIS and still going on.
... [T]he EIS at issue here was prepared as a result of litigation, and its approval was almost immediately challenged by litigation.... The EIS was little more than the bridge from one lawsuit to another.
Biddison,
In In re Grand Jury Subpoenas dated March 9, 2001,
In Binks Manufacturing Co. v. National Presto Industries, Inc.,
“The Seventh Circuit, in upholding the lower court’s ruling requiring production of these documents, stressed that in neither letter (by Binks or by Presto) were there any threats of, or expression of intent to institute, litigation.” Guardsmark, Inc. v. Blue Cross & Blue Shield,
In California ex. rel. Wheeler v. Southern Pacific Transportation Co., No. CIV S-92-1117 LKK GGH,
Cases deciding that documents were generated in the ordinary course of business or as a result of an independent duty, have all reached the conclusion that such reports will not receive work product protection. For example, in cases deciding that police reports were not protected by the work product doctrine, the court looked at whether the police investigation was made*797 in anticipation of litigation or whether it was routine procedure. Further, a medical examiner’s report which was prepared pursuant to an obligation to determine the cause of death, and in furtherance of his routine duties as a city employee, was held not to be in anticipation of litigation....
Id. at 4,
In Jumper, the Northern District of Illinois analyzed whether documents prepared in anticipation of arbitration or grievance proceedings were protected under the work product doctrine. The court stated that “[c]ourts have found that the work product doctrine applies to documents prepared by or for a party in connection with arbitrations because arbitrations are adversarial in nature and can be fairly characterized as ‘litigation.’ ”
Finally, the court notes that there is a line of cases, similar to those discussed above, that describe the proper standard in analyzing “dual-purpose” documents. For example, in Soeder v. General Dynamics Corp.,
Similarly, in Stout,
We believe that the appropriate standard for evaluating dual-purposed documents to be[:] ... If a document or thing would have been created for non-litigation uses regardless of its intended use in litigation preparation, it should not be accorded work product protection. Because the document would have been created for non-litigation reasons anyway, disclosure of the information therein would not disadvantage its creator, or advantage his op*798 ponent, by revealing the creator’s legal strategy or tactics; thus, the document’s release in discovery would not contravene the policies supporting the work product rule. There is no proprietary interest to protect, no threat to the orderly and fair administration of litigation, and no loss of incentive for attorneys or parties to creatively develop their eases. Since neither the language nor purposes of the work product [r]ule would be contradicted by this standard, we are constrained to so narrowly construe it.
Id. Thus, the court “presume[d] that documents which were produced by an insurer for concurrent purposes before making a claims decision would have been produced regardless of litigation purposes and therefore do not constitute work product.” Id. at 605; see also Harper,
The Ninth Circuit has also examined whether the work product doctrine should be extended to such “dual-purpose” documents in In re Grand Jury Subpoena,
2. Analysis
The potentially analogous authorities summarized above provide a context for and inform the court’s decision as to whether documents created in preparation for rate-setting, license, or permit application proceedings such those before the CPUC, NRC, and CCC can or should be protected from discovery under the work product doctrine. The court seeks to avoid the necessity of briefing specific to, and in camera review of, each individual document sought to be protected by providing guidance to the parties as to the court’s view of the types of documents that are protected in this context as documents created “in anticipation of litigation” under the work product doctrine.
As an initial matter, the court does not find it necessary to decide here whether the “primary motivating purpose” or the “because of’ approach is the correct application of RCFC 26(b)(3), because the court’s final determination in this discovery dispute does not turn on which standard is used. In any event, the court notes that under either formulation, “documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation” are not protected. Adlman,
a. Adversarial Aspects of CPUC and NRC Proceedings Constitute “Litigation” for the Purposes of the Work Product Doctrine, but CCC Proceedings do Not
Before addressing whether the “purpose[s] for which [plaintiff] created a document” warrant protection of that document under the work product doctrine and describing what kinds of documents the court considers to be prepared “in anticipation of litigation” in this context, the court must in the first instance determine whether rate-setting, license, or permit application proceedings before the CPUC, NRC, or CCC, or any aspects of such proceedings, constitute “litigation” for the purposes of the work product doctrine. To make this determination, the court reviews the parties’ descriptions of these proceedings as well as authorities identified by the court in its research in order to analogize each type of proceeding to the various administrative contexts analyzed in the potentially analogous case law the court has reviewed.
CPUC proceedings are proceedings in which general rates for utility company customers are established. Plaintiff points out that “[t]he CPUC has characterized general rate proceedings as litigation.” Pl.’s Resp. at 5 (citing In re Application of Pac. Gas & Elec. Co.,
third parties to CPUC proceedings are entitled to and often choose to intervene, creating contentious, adversarial proceedings. Interveners often submit interrogatories and data requests, requiring PG & E to prepare extensive and detailed responses ____ Draft documents such as [these responses] relating to general rate case[s] and decommissioning cost triennial proceedings were prepared in anticipation of those litigation matters, and as such, are protected from disclosure by the work product doctrine.
Id. (citing, inter alia, Cal.Code Regs. tit. 20, § 54 (2005)).
NRC proceedings relate to plaintiffs license to operate its nuclear power plants. As to proceedings before the NRC, plaintiff states that “PG & E’s submission of an application to amend its license initiates an adjudicatory proceeding that provides interested parties with the opportunity to participate in a hearing.” Id. (citing, inter alia, 10 C.F.R. §§ 2.101(f)(1) and 2.315 (2005)). Plaintiff also notes that “[a]t a hearing concerning a licensee-initiated application to amend its license, the applicant has the right to present evidence and rebuttal testimony and to cross-examine witnesses.” Id. at 7 (citing 10 C.F.R. § 2.711). It also appears that the applicant’s witnesses are subject to cross-examination by another party to the hearing, if any. See 10 C.F.R. § 2.711. Finally, “NRC specifically recognizes the applicability of the work product doctrine and privileges to its proceedings.” Pl.’s Resp. at 7 (citing 10 C.F.R. § 2.705(b)(1) and (3)).
CCC proceedings relate to plaintiffs obtaining a permit to build on coastal property for its business. With respect to CCC permit proceedings, plaintiff states that they
Defendant does not attempt to address, let alone rebut, these descriptions of CPUC, NRC, and CCC proceedings as “litigation” for the purposes of the work product doctrine. See Def.’s Reply at 6 (“The Government does not deny that there may be litigation associated with these proceedings.”). Defendant merely states that “[t]he test is not whether there may be litigation associated with the submission of documents to regulatory entities, but rather whether the documents were prepared primarily for litigation or alternatively, for some business reason.” Id. This statement ignores the crux of plaintiffs argument: that the proceedings themselves are litigation, and therefore documents created in anticipation of them are protected from discovery under the work product doctrine. Indeed, defendant fails to address plaintiffs argument that these documents
were prepared solely in anticipation of the various administrative proceedings. The government argues that these documents had multiple purpose[s] ... because PG & E’s real interest was the underlying rates or licenses that are the subject of the proceedings. But this argument is too broad. No plaintiff engages in litigation for the litigation itself. Even here, PG & E’s ultimate objective is obtaining a damages recovery, not engaging in litigation. Nor can the government properly distinguish between a public utilities commission rate case filing or licensing application and the administrative litigation over such filings and applications. Those filings are akin to complaints in litigation before this [c]ourt. The subsequent litigation is all part of a single litigation proceeding.
Pl.’s Resp. at 8.
Even if not addressed by defendant, plaintiffs argument must be evaluated. Plaintiffs analogy — comparing license and permit application proceedings to litigation such as that in this case — has the appeal of an easy and universally applicable solution to the current dispute, but it ultimately fails to convince. In order to attempt to achieve its “ultimate objective [of] obtaining a damages recovery” here, plaintiff had to file a complaint against the United States Government, the opponent from which it seeks to obtain a damages recovery. The “ultimate objective” of this litigation, therefore, is adversarial — to win damages from an opposing party against whom plaintiff has served a complaint. There would be no “litigation,” nor would this court have jurisdiction, without an adversarial claim against plaintiffs opponent, the United States Government. By contrast, in a license or permit application proceeding or a public utilities rate case, the “ultimate objective” is not adversarial — rather, it is to set rates with or obtain a license or permit from a regulatory body in order to advance the applicant’s business or comply with regulations. In a license or permit filing, plaintiff does not file a complaint against an opponent, but rather files an application for the license or permit with a neutral regulatory commission. Therefore, the court disagrees that filings before these administrative proceedings “are akin to complaints in litigation before this [e]ourt.” Pl.’s Resp. at 8.
The question remains, however, whether these administrative proceedings, or some aspects thereof, may constitute “litigation” for the purposes of the work product doctrine. The purpose of these proceedings is not adversarial, as it is in traditional litigation. But, as illustrated by plaintiff in its briefing, see Pl.’s Resp. at 5-7, adversarial parties have the opportunity to intervene and cross examination and rebuttal testimony may be heard in some of these proceedings, creating an environment potentially akin to the adversarial litigation in which the work product doctrine is intended to be applied. Cf. Restatement § 87 cmt. h (“In general, a proceeding is adversarial [and thus constitutes ‘litigation’ under the work product doctrine] when evidence or legal argument is presented by parties contending against each other with respect to legally significant factu
The CPUC’s website provides:
A General Rate Case [ (GRC) ] is the major regulatory proceeding for California utilities, which provides the CPUC an opportunity to perform an exhaustive examination of a utility’s operations and costs. Typically performed every three years, the GRC allows the CPUC to conduct a broad and detailed review of a utility’s revenues, expenses, and investments in plant and equipment to establish an approved revenue requirement.
http://www.cpuc.ca.gov/efaqs/generalratecase grc.htm (last visited Jan. 15, 2006). Thus, the purpose of a GRC before the CPUC is “to establish an approved revenue requirement.” Similarly, it appears that the purpose of the CPUC’s decommissioning triennial cost proceedings “is to set the annual revenue requirements for ... decommissioning ... for nuclear power plants.” In re So. Cal. Edison Co.,
However, plaintiff states, and defendant does not dispute, that “third parties to CPUC proceedings are entitled to and often choose to intervene, creating contentious, adversarial proceedings.” Pl.’s Resp. at 6. Indeed, section 52(b) of Title 20 of the California Code of Regulations states that “[wjhenever any electrical, gas, ... or sewer system utility files an application to increase any rate, the utility shall give notice of hearing, not less than five nor more than 30 days before the date of hearing, to entities or persons who may be affected thereby____” These “entities or persons who may be affected” then have an opportunity to intervene: “In a complaint proceeding petitions to intervene and become a party” will be heard by the presiding officer, and “[i]f leave is granted, the petitioner thereby becomes an intervener and a party to the proceeding to the degree indicated by the order allowing intervention, or by the presiding officer at the hearing.” Cal.Code Regs. tit. 20, § 53. In addition, the sole provision of the California Code of Regulations cited by plaintiff states:
In an investigation or application proceeding ..., an appearance may be entered at the hearing without filing a pleading, if no affirmative relief is sought, if there is full disclosure of the persons or entities in whose behalf the appearance is to be entered, if the interest of such persons or entities in the proceeding and the position intended to be taken are stated fairly, and if the contentions will be reasonably pertinent to the issues already presented and any right to broaden them unduly is disclaimed.
A person or entity in whose behalf an appearance is entered in this manner becomes a party to and may participate in the proceeding to the degree indicated by the presiding officer.
Cal.Code. Regs. tit. 20, § 54.
Thus, proceedings before the CPUC can, in some circumstances, resemble “litigation.” However, it is also true that initial filings for these proceedings, and any evidence presented or testimony provided to the CPUC thereafter in order accurately to set rates and revenues, can take the form of “primarily ex parte administrative, not ... adversarial, proceeding^].” McCook,
With regard to licensing proceedings before the NRC, Title 10, § 2.101 of the Code of Federal Regulations sets forth the procedures for filing “an application for a license, a license transfer, or an amendment to a license ... with the Director of the Office of Nuclear Reactor Regulation or Director of the Office of Nuclear Material Safety and Safeguards.” The applicable provisions of § 2.101 state, in pertinent part:
(a)(1) ... A prospective applicant may confer informally with the NRC staff prior to the filing of an application.
(a)(2) Each application for a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee will be assigned a docket number. However, to allow a determination as to whether an application for a construction permit or operating license for a production or utilization facility is complete and acceptable for docketing, it will be initially treated as a tendered application. A copy of the tendered application will be available for public inspection at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room. Generally, the determination on acceptability for docketing wdll be made within a period of thirty (30) days.
(f)(1) Each application for construction authorization for a [High-level radioactive waste (HLW) ] repository at a geologic repository operations area ..., and each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area ..., and any environmental statement required in connection therewith ... shall be processed in accordance with the provisions of this paragraph.
(f)(5) If a tendered document is acceptable for docketing, the applicant will be requested to submit to the Director of Nuclear Material Safety and Safeguards such additional copies of the application and environmental impact statement as the regulations ... require____
(f) (8) The Director of Nuclear Material Safety and Safeguards will cause to be published in the FEDERAL REGISTER a notice of docketing which identifies the State and location at which the proposed geologic repository operations area would be located and will give notice of docketing to the governor of that State. The notice of docketing will state that the Commission finds that a hearing is required in the public interest, prior to issuance of a construction authorization____
(g) Each application for a license to receive radioactive waste from other persons for disposal ... shall be processed in accordance with the provisions of this paragraph.*803 (g)(l)(i) Upon receipt of a tendered application, the Commission will publish in the FEDERAL REGISTER notice of the filed application and will notify the governors, legislatures and other appropriate State, county, and municipal officials and tribal governing bodies of the States and areas containing or potentially affected by the activities at the proposed site and the alternative sites. The Commission will inform these officials that the Commission staff will be available for consultation pursuant to § 61.71 of this chapter. The FEDERAL REGISTER notice will note the opportunity for interested persons to submit views and comments on the tendered application for consideration by the Commission and applicant.
10 C.F.R. § 2.101 (2005).
Again, however, plaintiff indicates, and defendant does not dispute, that “PG & E’s submission of an application to amend its license initiates an adjudicatory proceeding that provides interested parties with the opportunity to participate in a hearing.” Pl.’s Resp. at 6 (citing 10 C.F.R. §§ 2.101(f)(1) and 2.315).
Nevertheless, as with CPUC proceedings, the court declines to find that the work product doctrine should apply to all aspects of an NRC licensing proceeding such that an NRC licensing proceeding is generally and always “litigation” for the purposes of the work product doctrine. Indeed, in no sense is an NRC license applicant “in a defensive position and in an adversarial relationship to” the NRC. Cf. McCook,
With regard to CCC permit application proceedings, Title 14, Section 13066 of the California Coastal Regulations provides guidance to the court as to the nature of the proceedings:
The commission’s public hearing on a permit application shall, unless the chairperson directs otherwise, proceed in the following order:
(a) The executive director shall make a presentation to the commission identifying the application, describing the project, and summarizing the staff recommendation, including the proposed findings, proposed conditions, and written correspondence received prior to the public hearing.
(b) The public testimony portion of the public hearing shall proceed in the following order:
(1) Persons or their representatives desiring to state their views on the application shall have the opportunity to do so as follows:
(A) The applicant;
(B) Other persons supporting the application;
(C) Persons opposing the application;
(D) Other persons.
(2) The chairperson may allow rebuttal testimony by the applicant in accordance with Public Resources Code section 30333.1(a).
(3) The executive director may respond to and comment, as appropriate, on the testimony presented by any previous speaker.
(4) The chairperson may close the public testimony portion of the public hearing when a reasonable opportunity to present all questions and points of view has been allowed.
(c) Questions by commissioners will be in order at any time following any person’s presentation.
(d) At the conclusion of the public testimony portion of the public hearing, the executive director may propose to change the staff recommendation or the commission may propose to add, delete, or modify the conditions contained in the staff recommendation. The applicant and the executive director shall have an opportunity to comment briefly and specifically on any proposed change.
(e) The commission shall vote on a permit application in accordance with section 13090.
Cal.Code Regs. tit. 14, § 13066.
While it is true that “CCC permit proceedings ... provide for a public hearing on the permit application,” Pl.’s Resp. at 7, with an opportunity for “[pjersons opposing the application” to submit public testimony, Cal. Code Regs. tit. 14, § 13066(b)(1)(C), again, the purpose and nature of these proceedings is not adversarial. Nor does the court have any indication whether opposition frequently occurs, or if plaintiff ever faced opposition. The court finds that proceedings before the CCC least resemble “litigation” for the purposes of the work product doctrine. These proceedings seem to the court to be “primarily ex parte administrative, not ... adversarial, proceeding[s].” McCook,
Having determined that only the truly adversarial aspects, if any, of proceedings before the CPUC and NRC constitute “litigation” for the purposes of the work product doctrine,
Documents created by plaintiff “in the ordinary course of business or that would have been created in essentially similar form irrespective of’ the potential adversarial aspects of these proceedings (the aspects here deemed “litigation”) before the CPUC or NRC are not protected by the work product doctrine. Adlman,
Document Nos. 14 and 83,
Document No. 155,
Document Nos. 92-101,
Document No. 722,
Document Nos. 707-710,
[s]pecific items relating to the patent application process that were not deemed work products which] included decisions regarding which specifications to include in the patent application, decisions to use certain terms in the original patent application, and technical information from the client to attorney used for the purposes of preparing a patent application.
McCook,
On the other hand, Document Nos. 110-113,
Similarly, Document Nos. 263-267,
Finally, as a general matter, any documents prepared or generated “because of a public or business duty,” Wheeler,
Because the document would have been created for non-litigation reasons anyway, disclosure of the information therein would not disadvantage its creator, or advantage his opponent, by revealing the creator’s legal strategy or tactics; thus, the document’s release in discovery would not contravene the policies supporting the work product rule. There is no proprietary interest to protect, no threat to the orderly and fair administration of litigation, and no loss of incentive for attorneys or parties to creatively develop their cases. Since neither the language nor purposes of the work product [r]ule would be contradicted by this standard, we are constrained to so narrowly construe it.
Stout,
C. Conclusion
In conclusion, only documents that were created “with an eye towards” adversarial aspects of administrative proceedings before the CPUC or NRC, and that would not have been created in similar form but for these adversarial aspects, should be afforded protection as documents created “in anticipation of litigation” under the work product doctrine of RCFC 26(b)(3). The court finds that this approach “insur[es] that the litigator’s opponent” in these proceedings, if any, “is unable to ride on the litigator’s wits,” Allen,
The court has attempted, given the scant briefing describing these complex administrative proceedings, and the brief descriptions provided in plaintiffs Revised Privilege Log, to obviate the need to obtain briefing specific to, and to conduct an in camera review of, each individual document in dispute by providing guidance to the parties as to what “purpose[s] for which a party created a document,” Harper,
II. Memoranda Prepared for the Board of Directors
A. Summary of the Parties’ Arguments
In its Motion, defendant states that “[i]t appears that many documents that were sent to PG & E’s Board of Directors or other management-level committees ... have been withheld on ... attorney-client ... grounds ... improperly.” Def.’s Mot. at 14.
Plaintiff responds that
[i]n preparing the privilege log produced on June 21, 2005, PG & E listed authors and recipients only when there are individuals listed on the face of the document. But the lack of such a listing on the document does not mean that the document is*810 not privileged. An otherwise clearly privileged memorandum reflecting legal advice from the general counsel’s office to the Board of Directors does not lose its privileged status simply because the name of the lawyer and Board member are not listed on the document.25 The description field of PG & E’s privilege log clearly states that those documents do reflect communications between lawyers and the Board or management committee.
Pl.’s Resp. at 12 (citing Document Nos. 92 and 93, Pl.’s Resp. Ex. A (Plaintiffs Revised Privilege Log) at 9). Indeed, plaintiff contends, “[t]he privilege log entries for these ... documents ... explicitly state that they contain ‘legal analysis and recommendations submitted to the Board of Directors of PG & E for approval.’ ” Id. at 13.
Defendant’s Reply states that “PG & E did not cure the basic flaw in its privilege log regarding these documents — it did not identify any author or other information identifying that the information in the documents at issue were prepared by an attorney for PG & E to provide legal (rather than business) advice to PG & E.” Def.’s Reply at 7. Thus, defendant argues, “PG & E cannot assert the attorney-client privilege for the documents. PG & E does not meet its burden of explaining why these documents should be protected ____thus[ ] the [c]ourt should order the production of these [19] documents.” Id.
B. Discussion
1. The Attorney-Client Privilege
The attorney-client privilege is properly invoked where:
(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 [and] ... (b) in connection with this eommunication 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] ... (4) the privilege has been (a) claimed and (b) not waived by the client.
First Fed. Sav. Bank of Hegewisch v. United States, 55 Fed.Cl. 263, 266 (2003) (citing Energy Capital,
The attorney-client privilege is not restricted to individuals, but may be invoked by a corporate entity as well. Upjohn,
“The privilege does not apply to the fact of communication between a client and attorney. It is the substance of the communication which is protected, not the fact that there has been communication.” Burton v. R.J. Reynolds Tobacco Co.,
“Communications made by and to in-house lawyers in connection with representatives of the corporation seeking and obtaining legal advice may be protected by the attorney-client privilege just as much as communications with outside counsel.” Boca Investerings P’ship v. United States,
When a party invokes the attorney-client privilege by providing a privilege log, “the description of each document and its contents must be sufficiently detailed to allow the court to determine whether the elements of attorney-client privilege ... have been established. Failing this, the documents must be produced.” SmithKline Beecham Corp. v. Apotex Corp.,
When a party withholds information ... by claiming that it is privileged ... the*812 party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
RCFC 26(b)(5).
“The rule does not attempt to define for each case what information must be provided____ Details concerning time, persons, general subject matter, etc. may be appropriate.” Fed. R. Civ. Pro. 26(b)(5) Advisory Committee Notes. “Where descriptions in the privilege log fail to meet this standard, ‘then disclosure is an appropriate sanction.’ ” SmithKline,
2. Analysis
Each document that defendant moves the court to compel under the category of “memoranda prepared for the Board of Directors” is described in plaintiffs Revised Privilege Log as: “Recommendations and Legal Analysis Prepared at the Request or Under the Supervision of Counsel for Submission and Presentation to the PG & E Board of Directors [or the PG & E Management Committee] for Approval and Analysis of Proposed Regulatory Filing with” the CPUC or NRC, or in language very similar. Document Nos. 92-101, Pl.’s Resp. Ex. A (Plaintiffs Revised Privilege Log) at 9-11; see id., Document Nos. 92-101, 193, 290, 333-334, 677-679, 681-683. In the “Author” column, plaintiff either states “Pacific Gas & Electric Company,” see, e.g., id., Document Nos. 92-101, or “None,” see, e.g., id., Document Nos. 677-679. In the “Recipient” column, plaintiff either states “Womack, L.,” see, e.g., id., Document Nos. 92-101, presumably a member of the Board of Directors of PG & E, “PG & E Management Committee,” see, e.g., id., Document No. 677, “[PG & E] Board of Directors,” see, e.g., id., Document No. 678, or “[PG & E] Utility Policy Committee,” see, e.g., id., Document No. 679. Plaintiff also explains that these documents “reflect[ ] legal advice from the general counsel’s office to the Board of Directors,” Pl.’s Resp. at 12, and that “[w]here other other documents are a collaborative effort among or within PG & E departments, the company itself may be noted as the author,” id. at 12 n. 3
The court must decide whether “the description of each document and its contents ... [is] sufficiently detailed to allow the court to determine ... [that] the elements of attorney-client privilege ... have been established. Failing this, the documents must be produced.” SmithKline,
Plaintiff has not sufficiently “describe[d] the nature of the documents, communications, or things not produced or disclosed in a manner that ... enable[s] other parties to assess the applicability of the privilege or protection.” RCFC 26(b)(5). Although plaintiff claims that the documents generally contain “[r]ecommendations and [l]egal [a]nalysis,” see, e.g., Document Nos. 92-101, Pl.’s Resp. Ex. A (Plaintiffs Revised Privilege Log) at 9-11; cf. Burton,
While it is true that “courts routinely ‘have upheld the assertion of the attorney-client privilege and denied discovery of legal advice or information conveyed by a corporation’s attorney to its board of directors,”’ Pl.’s Resp. at 12-13 (quoting Great Plains Mut. Ins. Co.,
C. Conclusion
Although the court beHeves that it would be within its discretion in the circumstances of this case to order plaintiff to produce to defendant Document Nos. 92-101, 193, 290, 333-334, 677-679, and 681-683, the court exercises its discretion to ORDER plaintiff to PRODUCE Document Nos. 92-101, 193, 290, 333-334, 677-679, and 681-683 for IN CAMERA INSPECTION. On or before February 2, 2006, plaintiff shall cause to be dehv-ered to chambers in a sealed envelope two copies of each of Document Nos. 92-101,193, 290, 333-334, 677-679, and 681-683.
III. Whether it was Proper for Plaintiff to Instruct its Witnesses not to Respond During Their Depositions
A. Summary of the Parties’ Arguments
Defendant’s Motion states that “PG & E’s counsel has ..., throughout discovery in this matter, repeatedly prevented the Government from fully deposing many of PG & E employees and former employees by unjustified and disruptive tactics. Counsel have instructed deponents not to answer questions regarding the preparation of the damages claim provided to the Government and whether the deponent had discussions with PG & E’s expert witnesses and the substance of those discussions.” Def.’s Mot. at 16 (citing Def.’s Mot. Ex. F (Pulley Deposition (Dep.)) at 86-90 and Ex. G (Womack Dep.) at 14-26, 38,159-162). Defendant ar
counsel’s instruction not to answer questions regarding the damages claim does deny us information key to the defense here. It appears that counsel is attempting to cloak information about the damages calculations that may lead to relevant information about the basis for the costs, including how the costs were calculated, [and] who had input into the process of determining what categories of costs were recoverable. These inquiries are necessary to a full understanding of PG & E’s damages claim. Without the information, the Government is not able to adequately defend against costs that may be arguably specious or at least questionable.
Id. at 17-18. Thus, according to defendant, “[t]he [e]ourt should order plaintiff to produce the witnesses so that they can be questioned thoroughly about the damages claim.” Id. at 18.
Plaintiff responds that “PG & E counsel has appropriately instructed witnesses not to answer questions ... concerning the preparation of PG & E’s damages claim.” Pl.’s Resp. at 14. Indeed, plaintiff asserts, “[a] party does not automatically waive ... privileges, which protect the formulation of legal opinions or litigation strategy, simply by bringing suit.” Id. at 15 (citing Zenith Radio Corp. v. United States,
In its Reply, defendant points out that “PG & E points to no authority for the notion that claim preparation is by definition protected by either the attorney-client privilege or the work product doctrine.” Def.’s Reply at 8. Moreover, defendant argues, “PG & E did not assert a protection against disclosure of claim preparation material in any consistent manner.” Id. Defendant states that “PG & E’s blanket assertion is unsupported and vio-lative of our rights to discovery. Whether [Robert Kapus, PG & E’s budget coordinator/financial services supervisor,] had assistance from other PG & E employees in preparing the damages claim and, if so, the kind of input that he received, are directly relevant to the Government’s inquiry into the damages [claimed] here____ The Government is entitled to discover information required to appraise the reasonableness of the damages claimed here.” Id. at 10-11. Thus, defendant concludes, “[a]sserting work product and attorney-client privilege during the fact depositions of PG & E witnesses was wholly improper[ ] and obstructive!,] and has clearly prejudiced the Government in completing fact discovery.” Id. at 11.
B. Discussion
The court declines to address defendant’s application of the Hearn test, adopted by the Federal Circuit, see Afro-Lecon, Inc. v. United States,
Instead, the court finds that the appropriate course is to determine whether plaintiffs invocation of the work product doctrine to protect these witnesses from responding to defendant’s questions regarding the preparation of plaintiff’s damages claim was proper in the first place. Examples of the objections and witness instructions given by PG & E’s counsel are instructive:
Q: [Mr. Ekman, defendant’s counsel, to Larry Womack] Did you have any involvement in determining which costs PG & E incurred associated with the vent stack removal were ... caused by or incremental to the Department of Energy’s breach of the Standard Contract?
Mr. Stouck [plaintiffs counsel]: Yeah, that’s work product. That calls for work product, and I’ll object and instruct him not to answer.
Def.’s Mot. Ex. G (Womack Dep.) at 23, cited in Def.’s Mot. at 17.
Q: [Mr. Damelin, defendant’s counsel, to Lawrence Pulley] Now, did you have any involvement in the preparation of PG & E’s damages claim against the government in this case?
Mr. Shapiro [plaintiffs counsel]: Going to instruct Mr. Pulley not to answer that question. Calls for information protected by the work product doctrine.
Def.’s Mot. Ex. F (Pulley Dep.) at 86: 3-8, cited in Def.’s Mot. at 17.
Q: [Mr. Ekman, defendant’s counsel] Were you the only one involved in preparing or assembling the . information that ultimately went into this document [Humboldt Bay Power Plant Removal of Ventilation Stack Incremental Costs Due to Fuel in Pool, Cost Estimate April 2005]?
A: [Robert Kapus] No.
Q: Who else was involved in that project? Mr. Shapiro: Objection. Instruct Mr. Ka-pus not to answer. Privilege.
Q: Let me ask this: Were there any other PG & E employees who were involved in the preparation of this document?
Mr. Shapiro: Again, I am going to object and instruct Mr. Kapus not to answer.
Q: ... Did you alone determine which costs — which activities, which costs were incremental?
A: No.
Mr. Shapiro: Again, I am going to object and instruct Mr. Kapus not to answer that question.
[Q]: What’s the basis for that?
Mr. Shapiro: Privilege, work product.
Mr. Shapiro: You are talking about a document that was prepared in the course of litigation for submittal as part of the damages. Exactly how this document or comparable documents were put together, what process was used, who talked to whom, that’s covered by the work product doctrine.
Def.’s Reply Ex. 2 (Kapus Dep.) at 49-51, cited in Def.’s Reply at 8-9.
Witness responses to questions regarding the preparation of plaintiffs damages claim are not “documents [or] tangible things” under RCFC 26(b)(3). Nor do such questions, directed at PG & E employees, call for intangible work product “of an attorney or other representative of a party concerning the litigation,” RCFC 26(b)(3) (defining a “party’s representative” to “includ[e] the ... party’s attorney, consultant, surety, indemnitor, insurer, or agent”); cf. In re Cendant Corp. Sec. Litig.,
Thus, plaintiffs counsel’s assertion that responses of PG & E employees to deposition questions regarding the preparation of plaintiffs damages claim are “covered by the work product doctrine,” Def.’s Reply Ex. 2 (Dep. of Robert Kapus) at 51, attempts to stretch the doctrine beyond its recognized boundaries. To the extent that such questions call for the substance of communications made from these employees to their attorneys, the attorney-client privilege may apply, cf. Burton,
C. Conclusion
For the foregoing reasons, the court ORDERS that the depositions of Messrs. Ka-pus, Womack, Pulley, and any other PG & E employee improperly instructed to not answer questions regarding the preparation of plaintiff’s damages claim, be REOPENED. If the parties have further disputes regarding the permissibility of objections to questions during depositions, the parties shall contact chambers for guidance at that time and during the respective deposition by telephone at (202) 357-6564.
IV. Documents Prepared by Third Parties' for Regulatory Proceedings
In its Reply, defendant for the first time requests the court to “order PG & E to produce any documents prepared for its regulatory proceedings by any third parties.” Def.’s Reply at 8. However, “[rjaising the issue for the first time in a reply brief does not suffice; reply briefs reply to arguments made in the response brief — they do not provide the moving party with a new opportunity to present yet another issue for the court’s consideration. Further, the non-moving party ordinarily has no right to respond to the reply brief, at least not until oral argument.” Novosteel v. United States,
V. Conclusion
For the foregoing reasons and to the extent stated in Parts I, II and III of this Opinion, defendant’s Motion is GRANTED-IN-PART and DENIED-IN-PART. The parties shall continue to contact the court at any time when it appears that the involvement of the court may assist in securing “the just, speedy, and inexpensive determination of [this] action.” RCFC 1.
IT IS SO ORDERED.
Notes
. Defendant states that plaintiff "indicated that it would produce 29 of the 33 documents" in category six, and that defendant "considers the remaining four documents (Nos[.] 195, 196, 229, and 722) to fall within category one ..., documents related to public regulatory proceedings.” Def.’s Reply at 3. The documents listed in category one are still in dispute. While Document Nos. 195, 196, and 229 are already listed in category one, Document No. 722 is not. See Def.'s Mot. Exhibit (Ex.) A. The court considers Document No. 722 a part of category one for the purposes of this Motion.
. The court uses Exhibit A to defendant’s Motion to determine the exact document numbers in plaintiff's Revised Privilege Log that remain in dispute in each category.
. RCFC 26(b)(3) provides that:
a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
RCFC 26(b)(3). Because RCFC 26(b)(3) and Rule 26(b)(3) of the Federal Rules of Civil Procedure are identical, the court uses interpretation of the latter by other federal courts as persuasive authority.
. The parties have not suggested, and the court has not found, any authority from this court or the Federal Circuit that provides guidance in this regard. Nor has the court found any authority dealing directly with the issue of whether some or all documents created in anticipation of the particular rate-setting, license, or permit application proceedings involved in this case are protected by the work product doctrine.
. The fact that plaintiff cites this section rather than section 53 in contending that "third parties to CPUC proceedings are entitled to intervene” indicates to the court that the proceedings before the CPUC referred to by plaintiff as constituting "litigation” for the purposes of the work product doctrine are "investigation or application proceedings,” Cal.Code Regs. tit. 20, § 54 rather than "complaint proceedings,” Cal.Code Regs, tit. 20, § 53.
. It appears that the regulations were amended before the start of 2006. Compare 10 C.F.R. 2.101(f)(1) (2005) with 10 C.F.R. 2.101(f)(1) (2006). The court’s conclusion with regard to whether NRC licensing proceedings constitute "litigation” for the purposes of the work product doctrine does not change because of this amendment.
. The court notes, however, that this participation, at least for "[a] person who is not a party,” is only at "the discretion of the presiding officer.” 10 C.F.R. § 2.315(a). Moreover, a participant is only "permitted to make a limited appearance by making an oral or written statement of his or her position on the issues ... within the limits and on the conditions fixed by the presiding officer.” Id. Finally, a participant "may not otherwise participate in the proceeding!) and s]uch statements of position shall not be considered evidence in the proceeding." Id.
. 10 C.F.R. § 2.705(b)(3) states:
A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this section and prepared in anticipation of or for the hearing by or for another party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discoveiy has substantial need of the materials in the preparation of this case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney for a party concerning the proceeding.
10 C.F.R. § 2.705(b)(3). The court notes that the only difference between this section and RCFC 26(b)(3) is that this section applies the work product doctrine to documents "prepared in anticipation of or for the hearing" rather than those "prepared in anticipation of litigation or for trial."
. The court also notes, as the McCook court did, that plaintiff is called an “applicant” in these proceedings, which generally refers to an ex parte and neutral relationship with the regulatory body ruling on the application. Plaintiff is not referred to as an "appellant," or a plaintiff, as would be the case in more adversarial contexts.
. Because the court finds that permit application proceedings before the CCC do not constitute “litigation" for the purposes of the work product doctrine, the court does not reach the question of whether documents created in preparation for these proceedings were created "in anticipation of litigation." However, the court
. "Adversarial aspects,” as used here and below, refers to aspects of these proceedings in which an adverse party or intervener cross-examined, challenged, or otherwise opposed plaintiff in these proceedings. The parties should be clear that "adversarial aspects” does not refer to aspects of these proceedings which were entirely ex parte, or in which the examining agency, rather than any opponent, questioned, challenged, or otherwise required information from plaintiff.
. Document Nos. 14 and 83 are described as "Draft Licensing Report on Spent Fuel Racks for DCPP ...,” Pl.'s Resp. Ex. A (Plaintiff's Revised Privilege Log) at 2, and "Draft Licensing Report Regarding DCPP Reracking of Spent Fuel Pools,” id. at 8, and both are described as being “Prepared in Anticipation of Litigation — Regulatory Proceedings — NRC Licensing Amendment Proceedings,” id. at 2, 8.
. Document No. 155 is described as "Draft, Handwritten Willis Testimony prepared in anticipation of litigation — regulatory proceedings— NDCTP." Pl.'s Resp. Ex. A (Plaintiff’s Revised Privilege Log) at 3.
. By contrast, to the extent any of these drafts were prepared in anticipation of cross-examination by an opposing or intervening party, they should be protected under the work product doctrine.
. Document Nos. 92-101 are described as "Recommendations and Legal Analysis and Recommendations Prepared at the Request or Under the Supervision of Counsel for Submission and Presentation to the PG & E Board of Directors for Approval and Analysis of Proposed Regulatory Filing with CPUC regarding Decommissioning Costs for HBPP.” Pl.’s Resp. Ex. A (Plaintiffs Revised Privilege Log) at 9-11.
. Document Nos. 212-228 are described as "Draft Response[s] to NRC Request for Additional Information Regarding License Amendment Request. Prepared for Filing Before the NRC.” Pl.'s Resp. Ex. A (Plaintiffs Revised Privilege Log) at 17-19.
. Document Nos. 764 and 770 are both described as "Draft Application^] ... Prepared for Filing in GRC Proceedings Before the [CPUC].” Pl.’s Resp. Ex. A (Plaintiff's Revised Privilege Log) at 83.
. Document No. 722 is described as "Draft Letter to the NRC Regarding DCPP Licensing Issues. Prepared in Anticipation of Filing Before the NRC.” Pl.'s Resp. Ex. A (Plaintiff’s Revised Privilege Log) at 79.
. Document Nos. 707-710 are described as "Handwritten Notes of Counsel (R. Locke) Regarding Spent Fuel Storage Strategy. Prepared in Anticipation of Litigation — Regulatory Proceedings — NRC.” Pl.’s Resp. Ex. A (Plaintiffs Revised Privilege Log) at 77.
. Document Nos. 110-113 are described as "Draft DCPP ISFSI Licensing Scenario Timeline Reflecting Regulatory Strategy Prepared at the Request of Counsel in Anticipation of Litigation — Regulatory Proceedings- — NRC." Pl.'s Resp. Ex. A (Plaintiff's Revised Privilege Log) at 11.
. On the other hand, if these documents were not created because of the adversarial aspects of these proceedings, but rather in the ordinary course of attempting to be successful in setting rates or obtaining permits or licenses vis á vis the regulatory agency conducting the proceeding, and the prospect of adversarial aspects did not significantly alter such "strategy documents,” see Adlman,
. Document Nos. 263-267 are described as "Draft Data Response Document Prepared for Submission to the CPUC in Response to Specific Requests for Information from ORA; Pursuant to Intervention and Opposition to GRC Proceedings Before the CPUC.” Pl.’s Resp. Ex. A (Plaintiff's Revised Privilege Log) at 21.
. The court notes that some of the documents listed as "documents related to public regulatory proceedings" still in dispute, see Def.'s Mot. Ex. A (listing disputed document numbers), claim to be protected under both the work product doctrine as well as the attorney-client privilege, or under the attorney-client privilege alone, see, e.g., Document Nos. 588, 609, 291-292, Pl.’s Resp. Ex. A (Plaintiff’s Revised Privilege Log) at 63, 66, 23. To the extent that the parties have not already resolved any dispute regarding whether the attorney-client privilege protects these documents, and to the extent that this Opinion does not otherwise resolve such disputes, defendant shall so indicate, identifying the individual documents still in dispute and detailing the reasons therefor, including points and authorities as to why they should be produced, in its motion to compel.
Furthermore, in its Reply, defendant notified the court that “PG & E produced to the Government on November 7, 2005, a supplemental Privilege Log containing entries for 1062 additional documents that it has withheld on privilege grounds but that had not previously been identified. A cursory review of this privilege log shows that PG & E has withheld additional documents in the same categories as those challenged by the Government in its motion to compel." Def.’s Reply at 2 n.l. The parties shall use this Opinion in resolving any disputes associated with documents in plaintiff’s supplemental privilege log. To the extent they cannot resolve any of these disputes, defendant shall so indicate, identifying the individual documents still in dispute and detailing the reasons therefor, including points and authorities as to why they should be produced, in its motion to compel.
. To the extent that any of these "documents that were sent to PG & E’s Board of Directors or other management-level committees” have also been withheld "on work product grounds,” Def.’s Mot. at 14, the parties shall refer to Part I of this Opinion to determine whether work product protection has been properly applied to these documents.
. Plaintiff cites no legal authority to support this proposition.
. Plaintiff' is referring here to Document Nos. 92 and 93, but generally all 19 of the disputed documents in the category of "memoranda prepared for the Board of Directors," see Def.'s Mot. Ex. A (Listing of Disputed Documents), contain such a description or one similar to it, see, e.g., Document Nos. 193, 290, 333-34, Pl.’s Resp. Ex. A (Plaintiff’s Revised Privilege Log).
. RCFC 26(b)(5) and Rule 26(b)(5) of the Federal Rules of Civil Procedure are identical and thus the court uses federal courts' interpretation of the latter as persuasive authority.