The opinion of the court was delivered by: Royce C. Lamberth, District Judge.
This matter comes before the Court on a series of motions relating to the disposition of the sealed document included at Attachment C of the August 8, 2002 special report of the Court Monitor (now Special Master-Monitor) ("the Monitor"). On March 17, 2003, the Monitor filed a report finding that although this document fell under the protection of the deliberative process privilege, it should nevertheless be unsealed because plaintiffs had established that their need for the document outweighed the government's interest in maintaining the seal on the document. Having reviewed the Monitor's report, the objections submitted thereto, the parties' motions, the opposition and reply briefs submitted thereto, and the applicable law in this case, the Court hereby adopts the undisputed conclusions of law contained in the Monitor's report and rejects the disputed conclusions of law contained therein.
On August 8, 2002, the Monitor filed a special report with this Court.*fn1 Submitted with the Special Report was a document located at Attachment C that was filed with the Court under seal ("Attachment C"). On October 18, 2002, in response to motions filed by both parties, the Court directed the Monitor to provide counsel for the parties with copies of Attachment C under seal. The Court also ordered counsel to honor the seal on the document, limiting access to Attachment C and any communications about it only to personnel in their offices who would be required to view or discuss the document in order to prepare submissions by counsel. Finally, the Court ordered the parties to file any portion of their future submissions to the Monitor that referred to the content of Attachment C under seal.
In a letter dated October 21, 2002, the Monitor directed the parties to file briefs addressing the further disposition of copies of Attachment C. Defendants filed their brief under seal on October 24, asserting that Attachment C fell within the scope of the deliberative process privilege. The next day, plaintiffs filed a reply brief under seal requesting that the Court unseal Attachment C. On November 9, defendants filed a further response in support of their request that Attachment C remain sealed. Defendants filed two further motions requesting that the Court strike references to the content of Attachment C that were made by plaintiffs' counsel during a November 5, 2002 hearing, and in plaintiffs' second reply brief in support of their request that Attachment C be unsealed.
Each of these motions turned on whether the contents of Attachment C fell under the protection of the deliberative process privilege. The application of that privilege to the present case was not resolved, however, until the Court issued a memorandum opinion on February 5, 2003, explaining the manner in which the privilege applied to the present case. In that opinion, the Court explained that it would defer any ruling on the disposition of Attachment C until defendants had filed with the Monitor an affidavit conforming with the requirements for proper invocation of the deliberative process privilege with respect to Attachment C. The Court also explained that plaintiffs would be afforded an opportunity to submit to the Monitor a statement setting forth the reasons that plaintiffs needed the information contained in Attachment C, and that defendants would be given an opportunity to file a brief in reply to plaintiffs' statement.
On February 14, defendants submitted an affidavit purporting to conform to the requirements for the proper invocation of the deliberative process privilege with respect to Attachment C, and requested that the affidavit be filed under seal. On February 26, plaintiffs filed the statement of need requested by the Court in its February 5 opinion. Defendants submitted a reply brief on March 6, again requesting that it be filed under seal.
On March 10, defendants submitted a motion to strike plaintiffs' statement of need because the statement allegedly contained references to the content of Attachment C, and requested that the motion be filed under seal. On March 17, the Monitor submitted a report recommending that Attachment C be unsealed ("the March 17 Report"). Defendants submitted their objections to the Monitor's report on March 31, and asked that the objections be submitted under seal. Additionally, on March 27, defendants moved to strike two filings by plaintiffs that allegedly contained references to the content of Attachment C, and requested that their motion be filed under seal.
The March 17 Report submitted by the Monitor found that Attachment C was both predecisional and deliberative, and that defendants had submitted an affidavit conforming with the requirements for the proper invocation of the deliberative process privilege with respect to Attachment C. The Monitor therefore concluded that Attachment C fell under the protection of the privilege, and proceeded to examine whether plaintiffs had demonstrated that their need for the information in Attachment C outweighed defendants' interest in preventing the disclosure of that information. Applying the five-factor test derived from Schreiber v. Society for Savings Bancorp, Inc., 11 F.3d 217 (D.C. Cir. 1993), the Monitor balanced the interests and determined that plaintiffs' need for the information outweighed defendants' interest in preventing disclosure. Accordingly, the Monitor concluded that Attachment C should be unsealed.
The Court reviews conclusions of law made by the Monitor de novo. D.M.W. Contracting Co. v. Stolz, 158 F.2d 405, 407 (D.C. Cir. 1947); In re Vitamins Antitrust Litig., 211 F.R.D. 1, 3 (D.D.C. 2002). Because neither party has objected to the conclusions of the Monitor that Attachment C is predecisional and deliberative, that defendants submitted an affidavit conforming with the requirements for the proper invocation of the deliberative process privilege with respect to Attachment C, and that Attachment C is protected under the deliberative process privilege, the Court may adopt those conclusions without holding a hearing. Having reviewed the Monitor's conclusions de novo, the Court finds that they should be adopted as the law in this case.
However, defendants have objected to the Monitor's conclusions that plaintiffs' need for the information in Attachment C outweighs defendants' interest in preventing the disclosure of that information, and that Attachment C should therefore be unsealed. Because these are conclusions of law, the Court is required by Federal Rule of Civil Procedure 53(e)(2) to hold a hearing before the Court may adopt them as the law of this case. However, the Court has decided not to adopt either of these conclusions, obviating the need for a hearing on this matter.
Given that the Court has elected to maintain the seal on Attachment C, the explication of its decision must necessarily refrain from discussing the content of that document. Fortunately, the legal standards governing its decision have already been explained in the Court's February 5, 2003 memorandum opinion. In that opinion, the Court explained that
once the elements of the [deliberative process]
privilege have been met, the burden shifts to the
party opposing the privilege to establish that its
need for the information outweighs the interest of the
government in preventing disclosure of the
information. In this Circuit, courts balance the
interests by using a five-factor test derived from
Schreiber v. Society for Savings Bancorp, Inc.,
11 F.3d 217 (D.C. Cir. 1993), in which the D.C.
Circuit explained that "[a]t a minimum, the court must
consider: (i) the relevance of the evidence sought to
be protected; (ii) the availability of other
evidence, (iii) the `seriousness' of the litigation,
(iv) the role of the government in the litigation, and
(v) the possibility of future timidity by government
employees who will be forced to recognize that their
secrets are violable."
Mem. Op. dated February 5, 2003, at 5 (internal citations omitted). In their statement of need, plaintiffs set forth only two reasons why they need the information contained in Attachment C for the Phase 1.5 trial. Because an analysis of the first reason would necessarily entail a discussion of the content of Attachment C, the Court will say only that plaintiffs have failed to establish that they would not be able, without undue hardship, to obtain the same information by means of deposition testimony or the calling of live witnesses at trial. The second reason set forth by plaintiffs is that the information would furnish important evidence of defendants' bad faith. Without making any determination as to whether the information would provide any such evidence, the Court will simply note that plaintiffs have failed to establish that they would not be able to provide evidence of the bad faith of defendants through some other means. Having balanced plaintiffs' ...