Order regarding Motions for Clarification and to Compel
Plaintiffs have moved for clarification of the court’s July 23, 2002 order directing plaintiffs, as to each document listed in its privilege log, to provide "reasons “why the Government’s description of the particular document [sought to be protected] does not constitute prima facie grounds for invoking a claim of privilege.” They also, by way, inter alia, of motions to compel, contest defendant’s requests for a protective order to prevent disclosure of materials listed in its privilege log and allegedly covered by the deliberative process, attorney work-produet, or attorney-client privileges.
Prima Facie Description
Plaintiffs suggest that the court’s reference to “prima facie grounds” is inappropriate because some of the grounds provided by the Government, although ostensibly supporting a claim of privilege, should not be credited. Plaintiffs also request that the court “clarify” that the Government shall have no more chances to support its privilege claims.
The term “prima facie” comes from the Latin phrase for “at first view.” Webster’s Ninth New Collegiate Dictionary 932 (1990). Normally, a “prima facie case” consists of a presentation of evidence that suffices as a matter of law to warrant submission of an issue for decision by the trier of fact. 9 J. Wigmore, Evidence § 2494 (J. Chadbourn rev. ed.1981). “[T]he phrase ‘prima facie case’ ... may be used by courts to describe [a party’s] burden of producing enough evidence to permit the trier of fact to infer the fact at issue.” Demaco Corp. v. F. Von Langsdorff Licensing Ltd.,
However, “prima facie” also may mean merely that which is sufficient to establish a fact or raise a presumption unless disproved or rebutted. E.g., Texas Dep’t of Community Affairs v. Burdine,
As to the attorney-client privilege, a major area of plaintiffs’ challenge to defendant’s privilege log, Dean Wigmore states:
It is not easy to frame a definite test for distinguishing legal from nonlegal advice ____The most that can be said by way*309 of generalization is that a matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice.
8 Wigmore, Evidence § 2296 (McNaughton rev. ed.1961) (emphasis added).
Therefore, the court’s order that each party submit its prima facie grounds for denying production of each withheld document requires merely a description of the type of document {e.g., an opinion letter, a request for an opinion letter), its topic, date, the writer and recipient, and an explanation as to why the matter is deemed to be privileged (which privilege was being invoked and on what grounds). Needless to say, the party invoking the privilege need not reveal so much about the contents of a communication as to compromise the privilege. These are the customary contents of a privilege log, and plaintiffs have demonstrated no reason why they should not apply in this case.
The challenger of a privilege has the burden of showing, whether based on the terms of the description, or on extraneous knowledge, that the document appears not to be privileged. These standards are sufficiently clear from the court’s July 23, 2002 order, and the usual rules governing this type of discovery. Therefore, plaintiffs’ motion for further clarification on this point is denied.
Deliberative Process Privilege
The Government has asserted the deliberative process privilege over 24 documents described in an affidavit from Mr. Ronald A. Milner, Chief Operating Officer, Civilian Radioactive Waste Management (OCRWM), within the Department of Energy (DOE). By a May 13, 2002 amendment to the standing delegation order from the Secretary to the Under Secretary for Energy, Science, and Environment, DOE Delegation Order No. 00-002.00, the Secretary of Energy delegated to that Under Secretary, with the right to re-delegate in part or in whole, the authority to assert the deliberative process privilege in matters within her cognizance. On the same day, the Under Secretary re-delegated this authority, with the power to re-delegate, to the Director of the OCRWM, and the. latter re-delegated this authority to Mr. Milner.
In his affidavit, Mr. Milner provides a description of each document, including the author, the nature of his or her advice, and, in most cases, the specific decision being deliberated. The affidavit also states that invoking the privilege in each instance is necessary to assure the free flow of ideas and candid discussions within the agency.
The Government argues that: 1) delegation of the authority from the Secretary down to Mr. Milner is proper under the Secretary’s general sub-delegation authority contained in 42 U.S.C. § 7252; 2) Mr. Milner’s affidavit meets the requirements for invoking the deliberative process privilege; 3) any factual information in the withheld documents is so intertwined with the deliberative recommendations that redaction is impractical; and 4) plaintiffs have shown no need (such as relevance, cumulativeness, unavailability from other sources) to override the privilege.
Plaintiffs contend that, because Mr. Milner is not the head of the agency, his assertion of privilege is improper and that, even if the authority could be delegated, the head of the agency first must issue guidelines on the proper use of the privilege, which was not done.
Furthermore, according to plaintiffs, even if Mr. Milner may assert the privilege, his descriptions of the withheld documents are insufficiently detailed because they do not establish that they were prepared by their authors for the purpose of assisting an agency official charged with making the decision, but merely establish that the documents “reflect” policy deliberations.
Plaintiffs allege that 20 of the 24 documents described in the affidavit are deficient on various other grounds as well, e.g., because the privilege was waived by the document’s later incorporation into official agency decisions, or because the document relates to discussions with another agency, such as the Office of Management and Budget (OMB), as
The deliberative process privilege, sometimes confused with executive privilege,
A. Delegation
Under 42 U.S.C. § 7252, the Secretary of Energy is permitted to delegate his authority unless otherwise prohibited by law.
On the contrary, Department of Energy v. Brett,
Several other jurisdictions also allow delegation. See Landry v. Federal Deposit Insurance Corp.,
Significantly, the Supreme Court’s Proposed Rule 509 allows assertion of the deliberative process privilege, as a “privilege for official information,” as low as the level of “any attorney representing the Government.”
The rationale for delegation in Brett and Landry applies fully here. Insisting that the deliberative process privilege be asserted only by the Secretary of an agency after gaining “specific and detailed” knowledge of every document sought effectively would prevent the Government from ever invoking the privilege. Moreover, even if the Secretary were to attempt to acquire such detailed personal “knowledge,” it invariably would derive from briefings by the very officials given the delegations. Failing to permit invocation by the agency officials most familiar with the matter at hand, in fact, would conflict with another principle underlying the privilege— the need for actual, personal consideration by the invoker of the privilege. Landry,
B. Invocation of the Privilege
To be eligible for deliberative process protection, a policy-making document must be both pre-decisional and deliberative. In re Sealed Case,
Plaintiffs argue that documents later incorporated into an official agency decision are not privileged. See Coastal States Gas Corp. v. DOE,
The court in Coastal States,
However, the documents described in Mr. Milner’s affidavit appear to be non-binding recommendations; were not, as far as has been shown, final dispositions; apparently were not used as precedent; have not had operational effect except to the extent they informed agency officials; and were not expressly incorporated into or adopted by final agency decision. Therefore, they are properly protected.
While plaintiffs claim that document A, for example, became part of the final “decision” to which it relates and is, therefore, outside the privilege, nothing in Mr. Milner’s affidavit, or proffered by plaintiffs, reveals that document A was adopted, implemented, or enforced as a final agency decision.
Neither is the privilege negated by defendant’s failure, in some cases, to identify a later, specific agency decision that was based on the “pre-decisional” documents. As the Supreme Court stated:
[The] emphasis on the need to protect predecisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared. Agencies are, and properly should be, engaged in a continuing process of examining their policies; this process will generate memoranda containing recommendations which do not ripen into agency decisions; and the lower courts should be wary of interfering with this process.
Sears, Roebuck,
Mr. Milner’s affidavit provides sufficient information to conclude that each document was prepared in order to offer opinions or recommendations to agency decision-makers prior to their taking action on legal or policy matters. Plaintiffs have pointed to no factual information regarding any document listed in the affidavit that would undermine that conclusion, or even to any severable factual information not qualifying for the privilege.
Plaintiffs’ proposition that documents relating to DOE’s discussions with OMB or with any other agency are outside of the scope of this privilege, or waived, also must be rejected. The privilege protects “intragovernmental documents reflecting advisory opinions, recommendations and deliberations.” Carl Zeiss Stiftung,
The Supreme Court’s Proposed Rule 509(a)(2)(A) (emphasis added) also defines information subject to the privilege as “intragovernmental opinions or recommendations ____” See also Texaco P.R. v. Dep’t of Consumer Affairs,
Accordingly, the court denies plaintiffs’ motion to compel the production of the documents withheld pursuant to the deliberative process privilege asserted in Mr. Milner’s May 13, 2002 affidavit. To the extent that the Government needs to offer “precise and certain reasons” for invoking the privilege, see Coastal Corp. v. Duncan,
Attorney-Client Privilege
Plaintiffs’ original motions to compel disputed the Government’s withholding of 925 documents based on attorney-client or attorney workproduct privileges.
Plaintiffs argue that in this revised log, the Government has failed adequately to indicate the author and recipient and the legal issue involved, or to show that the Government attorneys were not acting in their “regulatory capacity.” They also argue that the Government has not shown that certain documents dating back to 1992 and earlier were prepared in anticipation of litigation, and that defendant has waived its privilege over certain documents by voluntarily disclosing related documents or by failing to “verify” their confidentiality.
Defendant maintains that it has satisfied its burden of claiming the privileges by providing the names of the author and recipient, the date (if available), and a description of the document, identifying the legal issue. The Government denies that any of the withheld documents involve policy-making, rather than legal advice or work-product. As to the challenged attorney work-product, the Government argues that it was prepared in anticipation of litigation, even if not the litigation in this case, one of the numerous lawsuits filed since the 1980s under the Nuclear Waste Policy Act of 1982. Finally, the Government claims that no waiver has occurred because: 1) the disclosures of two of the documents at issue were extrajudicial; and 2) the documents it continues to withhold do not relate to the subject matter of the documents it voluntarily disclosed.
Plaintiffs dispute the invocation of the attorney-client privilege for a significant number of the documents on the grounds that the Government’s attorneys’ analyses of the Government’s obligations under a statute, regulation, or contract constitute, not legal advice, but policy-making, and therefore fall outside the scope of the attorney-client privilege, or because the advice or request for advice concerns public matters.
It is clear that an agency and its lawyers may enjoy the type of relationship that would entitle them to the attorney-client privilege, Coastal States,
Furthermore, the privilege, under certain circumstances, may protect, not only communications from client to counsel, but also communications from counsel to client, which may reveal by implication whether a communication was made and its substance. 8 Wig-more, Evidence § 2320 (McNaughton rev. ed.1961). See American Standard, Inc. v. Pfizer Inc.,
As plaintiffs point out, several cases, including Coastal States,
The attorney-to-client privilege for communications by an attorney that reveal, directly or indirectly, the substance of a confidential communication by the client, which was validated in American Standard,
However, unlike the D.C. Circuit in Coastal States, Schlefer, or Tax Analysts, the Federal Circuit has never expressly limited the attorney-to-client communications privilege to communications revealing confidential information, as opposed to confidential communication. But see American Standard,
The distinction between information and communication is critical because the attorney-client privilege protects the information that was communicated with the expectation of privacy, but not the underlying factual information. 3 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 503.14[4][a] (Joseph M. McLaughlin, ed., Matthew Bender 2d ed.2002) (“Thus, for example, if the privilege is invoked, a client may not be asked the question: What did you tell your attorney about the amount claimed as a business expense?’ However, the client may be asked the question: ‘Did you spend the amount claimed as a business expense for meals or for travel?’ ”)
While most courts have properly construed the privilege as protecting communications and not the underlying facts or information; see Natta v. Hogan,
Therefore, the court rejects plaintiffs’ argument, based on Coastal States and Schlesinger, that an attorney’s interpretation of a statute, regulation, or contract is discoverable merely because the underlying information is public.
While the attorney-client privilege applies only to requests for any confidential communication transmitted for the purpose of obtaining legal services, in determining that purpose “[i]t is enough that the overall tenor of the document indicates that it is a request for legal advice or services'.” Spalding Sports,
Moreover, a communication by a client with his or her attorney is presumptively a request for legal advice: “[A] matter committed to a professional legal adviser is prima facie so committed for the sake of the legal advice which may be more or less desirable for some aspect of the matter, and is therefore within the privilege unless it clearly appears to be lacking in aspects requiring legal advice.” 8 Wigmore, Evidence § 2296 (McNaughton rev. ed.1961). In addition, the services need not be rendered in conjunction with actual or potential litigation. Coastal States,
The documents authored by Susan Klein after 1997 do constitute legal, rather than policy, advice because, contrary to plaintiffs’ contention, and as Ms. Klein’s deposition testimony states, she continued to provide legal advice and to report to the General Counsel between 1997 and 1999. Thus, the documents she authored between 1997 and 1999, and described as her legal advice, are protected by the attorney-client privilege.
Plaintiffs also maintain that two documents, Nos. 1875 and 1878, requesting the legal advice of Sandra Sherman of the DOE Office of General Counsel,
As a general rule, disclosure of a privileged communication waives the privilege over other communications of the same subject matter. See GFI, Inc. v. Franklin Corp.,
However, subject matter waiver is inapplicable where the disclosure was not made in the context of a judicial proceeding and did not afford the client an adversarial gain. See In re von Bulow,
Accordingly, because plaintiffs have failed to demonstrate any prejudice or tactical disadvantage resulting from DOE’s disclosure of two memoranda in a non-judicial setting over eight years ago, related confidential documents, if privileged, may be protected from disclosure. See Stratagem, Dev. Corp. v. Heron Int’l N.V.,
Plaintiffs do not, as they must, satisfactorily explain why documents that on their face appear to be legal communications “clearly appear to be lacking in aspects requiring legal advice.” Therefore, plaintiffs’ motion to compel the production of the documents defendant has withheld under the attorney-client privilege is denied.
Attorney Work-Product Privilege
The attorney work-product privilege attaches to documents prepared in anticipation of litigation or trial by a party or its representative. Hickman v. Taylor,
The parties agree that the attorney work-product privilege applies only if the anticipated litigation is “fairly foreseeable” or “a real possibility.” Resident Advisory Bd. v. Rizzo,
From a review of the correspondence submitted by defendant, it is evident that litigation was “fairly foreseeable” by the agency as early as September 30, 1991, when the Minnesota Department of Public Sendee wrote to the Secretary of Energy: “... it is highly probable that your department will experience significant delay in meeting its obligations to begin taking high-level radioactive waste in 1988. Therefore, I have directed my legal counsel to prepare a Petition for Relief.” The fact that the first suit actually was filed in 1994, one or two years after the challenged documents were written, also supports defendant’s position that imminent litigation was njore than a mere possibility in 1991.
Accordingly, the privilege log provides sufficient basis to conclude that documents withheld under the attorney work-product privilege were created for “the primary motivating purpose,” see United States v. Gulf Oil Corp.,
CONCLUSION
For the foregoing reasons, the plaintiffs’ motion to compel the production of documents withheld under the deliberative process privilege, the attorney-client privilege,
Notes
. "Executive privilege” generally refers to the constitutional privilege invoked by the President of the United States to withhold confidential Presidential or intra-executive branch communications of the President. See United States v. Nixon,
. 42 U.S.C. § 7252 provides:
Except as otherwise expressly prohibited by law, and except as otherwise provided in this Act, the Secretary may delegate any of his functions to such officers and employees of the Department as he may designate, and may authorize such successive redelegations of such functions within the Department as he may deem to be necessary or appropriate.
. The trial courts in Vons Cos. v. United States,
. Plaintiffs contend that the precedential effect of decisions by the Temporary Emergency Court of Appeals (TECA) is limited to cases that tire Federal Circuit reviews as a successor to TECA (i.e., cases arising under emergency price control legislation). However, the Federal Circuit has repeatedly stated, without any qualification, that TECA decisions are precedential. See, e.g., Consolidated Edison Co. of N.Y., Inc. v. Richardson,
. The affidavit states that document A "seeks Secretary-level approval of the attached Program
. None of the decisions binding on this court, including Sears, Roebuck,
. On April 22, 2002, the Utility Plaintiffs filed a motion to compel covering defendant's February 15, 2002 privilege log. On April 29, 2002, the Yankee Utilities filed a separate motion to compel, covering defendant’s February 15, 2002 and two 1999 privilege logs. On May 7, 2002, defendant filed a copy (originally filed with Judge Merow) of its response to the Yankee Utilities' motion to compel covering the 1999 privilege
. As pointed out in Judge Newman’s dissent, American Standard,
The district court said the opinion letter was not a privileged communication because it relied on nonconfidential information and stated the source of that information. Contrary to American Standard’s assertion, it did not say the opinion letter was not privileged merely because it relied on publicly available information. It clearly said the letter relied on non-confidential information gleaned from public records. American Standard simply ignores the finding of nonconfidentiality and focuses alone on its source.
. The court also rejects plaintiffs’ contention that defendant’s disclosure of the four “Cavanaugh Documents” somehow waives the attorney-client privilege over all documents relating to the Standard Contract or its interpretation. It is clear from the record that the disclosed documents (3 draft contracts and a memo containing minutes of a meeting) were prepared for distribution to third parties and, therefore, were not confidential, and not privileged. The disclosure of unprivileged documents, however, does not constitute waiver of privilege. American Standard,
. Only one of these documents, No 1878, appears to be a request for a legal opinion.