UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
September 12, 2006
GENERAL ELECTRIC CO., PLAINTIFF,
STEVEN JOHNSON, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, DEFENDANTS.
The opinion of the court was delivered by: John D. Bates United States District Judge
Presently before the Court is plaintiff General Electric Company's ("GE") motion to compel production of approximately 6,177 documents that defendants Environmental Protection Agency ("EPA") and Steven Johnson, in his capacity as administrator of EPA, claim are covered by the deliberative process privilege, attorney-client privilege, and work product doctrine. GE has also requested the appointment of a special master to conduct an in camera review of these documents. A motions hearing was held with the Court on June 2, 2006, following which the Court ordered the parties to make two additional submissions. Specifically, defendants were required to utilize a statistically-reliable method to generate a sample of approximately 100 documents that is representative of the various withholding claims and geographic regions at issue, to facilitate the Court's in camera review. GE, on the other hand, was ordered to submit a list (organized by stamped document numbers) and a copy of all documents with respect to which it claims that defendants have, by virtue of disclosing those documents, effected subject-matter waiver of any otherwise applicable privilege. Based upon its in camera review of these documents in light of applicable law, and for the reasons that follow, the Court will grant GE's motion in part and deny it in part.
I. Factual and Procedural Background.
This action was originally filed against defendants on November 28, 2000 as a challenge to the facial constitutionality of certain provisions of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9606(a) et seq., and to EPA's method of administering § 106(a) of that statute. Section 106(a) empowers EPA to require responsible parties to clean up a contaminated site if it finds "that there may be an imminent substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility." 42 U.S.C. § 9606(a). The usual course of conduct is for EPA to send the responsible party a "Section 106 order," also referred to as a "UAO." Defs.' Mem. Opp'n at 3.*fn1 If the recipient fails to comply with the UAO, then EPA may bring an action in federal court seeking to compel compliance, during which the recipient may present all of its challenges to the UAO. If the court determines that the recipient lacked "sufficient cause" for refusing to comply, then the court may impose penalties and punitive damages. 42 U.S.C. §§ 9606(b)(1), 9607(c)(3); Defs.' Mem. Opp'n at 3. A recipient that chooses to comply with a UAO may petition EPA to reimburse the response costs from the Superfund, see 42 U.S.C. §§ 9606(b)(2)(A), (C-D); Defs.' Mem. Opp'n at 3, and, in the event that EPA denies the petition, may file an action for reimbursement in federal district court, see 42 U.S.C. §§ 9606(b)(2)(B), (E); Defs.' Mem. Opp'n at 3.
On March 31, 2003, this Court granted EPA's motion to dismiss GE's amended complaint on the ground that § 113(h) of CERCLA barred pre-enforcement review of GE's constitutional challenge to CERCLA. See General Electric Co. v. Johnson, Civil Action No. 00-2855, dkt. no. 54 (D.D.C. Mar. 31, 2003) (Order). That decision was overturned on appeal, and the case was remanded to this Court. See General Electric Co. v. EPA, 360 F.3d 188 (D.C. Cir. 2004). Thereafter, discovery was stayed to allow the Court to rule on EPA's motion for summary judgment. See General Electric Co. v. Johnson, Civil Action No. 00-2855, dkt. no. 69 (D.D.C. Nov. 22, 2004) (Order). In its motion, EPA argued that GE's constitutional challenge to CERCLA was a facial challenge limited to review of the statute's text and, accordingly, that GE was required to establish that CERCLA is unconstitutional in every application, consistent with United States v. Salerno, 481 U.S. 739 (1987). EPA contended that GE could not carry its burden under Salerno because CERCLA plainly was constitutional as applied in emergency situations.
GE vigorously opposed EPA's motion, arguing that the complaint advanced not only a facial due process challenge based on CERCLA's text, but also a challenge based upon EPA's pattern and practice of administering § 106, which, it asserted, was not foreclosed by the jurisdictional bar of § 113(h) as interpreted by the D.C. Circuit on appeal. See General Electric Co., 360 F. 3d at 193-94. Accordingly, GE moved the Court to permit discovery as to both of its claims. In its Memorandum Opinion of March 30, 2005, this Court held that although the challenged statutory provisions are not unconstitutional "on their face," see General Electric Co. v. Johnson, 362 F. Supp. 2d 327, 330 (D.D.C. 2005), GE had nonetheless sufficiently alleged a "pattern and practice" challenge to the procedure that EPA employs in administering § 106, id. at 334, 337, 344. The crux of GE's pattern and practice claim is that EPA's "enforcement first" policy and administration has deprived GE of its constitutional right to procedural due process of law. The Court allowed the parties to begin discovery regarding this claim.
II. The Current Discovery Dispute.
On June 17, 2005, GE served a broad discovery request upon EPA, seeking tens of thousands of documents dating as far back as 1980. Defs.' Mem. Opp'n at 4. The parties worked together to narrow the scope of the requests, but these issues were not fully resolved until August 29, 2005, through the Court's order. Id.; see General Electric Co. v. Johnson, Civil Action No. 00-2855, dkt. no. 93 (D.D.C. Aug. 29, 2005) (Order). Thereafter, EPA conducted a five-month nationwide search for, and then review and retrieval of, approximately 20,000 documents, which occupied hundreds of employees and required 14,000 personnel hours to complete. Defs.' Mem. Opp'n at 4. To date, EPA has produced a total of 12,866 documents from multiple regions, but claims that the remaining 6,177 documents are protected by the deliberative process privilege, attorney-client privilege, and/or work product doctrine.*fn2 See id. at 1 n.1; Defs.' Exh. 2 (EPA's revised and cumulative privilege log). GE argues that EPA's privilege assertions are overly broad and inapplicable, and that EPA has implicitly waived some protections through its disclosure of other documents that are similar in character and subject matter. See, e.g., Pl.'s Mem. Supp. at 1. Because these documents are allegedly "crucial" to the "core issues" of its pattern or practice claim, GE requests that the Court issue an order forcing EPA to produce all remaining documents. Id. at 1, 3. Moreover, GE seeks the appointment of a special master to conduct an in camera review of any documents that remain the subject of dispute following the Court's rulings as to the proper scope of the protections and privileges asserted. Id. at 1.
The Court held a motions hearing on June 2, 2006. That same day, the Court ordered GE to submit a copy of all documents that it alleges were inadvertently disclosed by EPA and therefore form the basis of GE's arguments for subject-matter waiver. EPA was ordered to use a statistically-viable method to generate a sampling of approximately 100 documents drawn from the updated privilege log for the Court to review in camera. EPA has generated that sampling after first removing from its privilege log those documents that GE does not seek to obtain. In order to comply with the Court's direction that the sampling be a fair cross-section of the various privilege assertions, geographic regions, and classes of documents included in EPA's privilege log, EPA decided to include a total of ninety-nine documents in the following distribution: twenty-five documents from the Office of Site Remediation and Enforcement; ten documents from each of two other EPA Headquarters Offices (designated as "OGC" and "FFEO"); five documents from the Department of Justice; eight documents from each of the EPA Regional Offices for Regions Two, Five, and Nine; and five documents from each of the EPA Regional Offices for Regions One, Three, Four, Six, Seven, Eight and Ten. Defs.' Cover Letter of 06/14/2006 at 1. To determine which documents would comprise this distribution, EPA assigned random numbers to each privilege log entry using the computer program Microsoft Excel. Id. GE agreed that this sampling method was fair. Id. Following the in camera submission, the parties conferred further and decided that the documents designated as P.L. No. 975, P.L. No. 5002, P.L. No. 2215, and P.L. No. 2290 should be removed from the privilege log and, hence, the in camera sampling. Defs.' Cover Letter of 6/16/2006. In their place, the parties added four new documents, identified as P.L. No. 1042, P.L. No. 6535, P.L. No. 1724, and P.L. No. 546. Id.
Based upon its in camera review of the documents submitted by the parties, the various legal memoranda, and EPA's most recent privilege log, the Court will grant GE's motion in part and deny it in part. This Memorandum Opinion sets out the legal framework to be applied in making privilege determinations as to the over 6,000 documents for which EPA has claimed privilege. Table T-1, attached hereto, summarizes the Court's privilege findings with respect to the sampling of documents reviewed in camera. Table T-2, also attached, indicates the Court's determinations regarding the inadvertently-disclosed documents that form the basis for GE 's subject-matter waiver arguments. Because there is no evidence of bad faith or noncompliance on the part of EPA, the Court denies GE's request for the appointment of a special master. However, in light of the errors identified by the Court during its in camera review, the Court directs EPA to perform the following tasks: (1) review all withholdings in light of the principles and findings set forth herein regarding the scope and possible waiver of the protections asserted; (2) make additional disclosures to GE consistent with the Court's analysis; (3) prepare an updated privilege log; and (4) submit a new statistically-representative sampling (consisting of no more than 50 of the documents identified on the final privilege log) for the Court to review in camera.
I. The Deliberative Process Privilege
A. Parameters of the Privilege
The deliberative process privilege "serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). To this end, the privilege protects documents or communications that are "predecisional" and "deliberative" in nature. See, e.g., Am. Fed'n of Gov't Employees, Local 2782 v. U.S. Dep't of Commerce, 907 F.2d 203, 207 (D.C. Cir. 1990). One important inquiry is whether the document constitutes "secret law" actually applied by the agency in its dealings with the public. See Tax Analysts v. IRS, 117 F.3d 607, 617 (D.C. Cir. 1997); Coastal States, 617 F.2d at 867. The existence of "secret law" is ordinarily evidenced by documents that "serve as 'law' in the specific case to which they are addressed" or "serve as 'law'-like precedent in subsequent cases." Schlefer v. United States, 702 F.2d 233, 237 (D.C. Cir. 1983).
To be considered predecisional, the material must "'precede, in temporal sequence, the 'decision' to which it relates.'" Hinckley v. United States, 140 F.3d 277, 284 (D.C. Cir. 1998) (quoting Senate of the Commonwealth of Puerto Rico v. U.S. Dep't of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)). "'Accordingly, to approve exemption of a document as predecisional, a court must be able to pinpoint an agency decision or policy to which the document contributed.'" Id. (quoting Senate of Puerto Rico, 823 F.2d at 585); see also Wilderness Society v. United States Dep't of the Interior, 344 F. Supp. 2d 1, 12 (D.D.C. 2004) (ordering disclosure because agency failed to identify a specific, final agency decision). As with all privilege assertions, the agency bears the burden of demonstrating the final policy or decision that was reached at the end of the particular deliberative process that the document plays into. See SafeCard Servs., Inc. v. Securities Exchange Comm'n, 926 F.2d 1197, 1204 (D.C. Cir. 1991). "Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States, 617 F.2d at 866.
The purpose of the privilege is to protect the consultative process by guarding against the deterrence of deliberative candor in future discussions. See id. At the very instant that an agency aligns its policy or program congruently with the views expressed in a particular document, the document is no longer seen as "reflect[ing] the personal opinions of the writer"; rather, it reflects the position of the agency. See Tax Analysts, 117 F.3d at 617-18; Coastal States, 617 F.2d at 868, 869. Under such circumstances, the document is no longer considered "predecisional," see Coastal States, 617 F.2d at 866, and the purpose of the privilege is not implicated -- it is the agency, not the individual drafter, that may thereafter be exposed to ridicule or criticism if the policy proves ill-advised. See Sterling Drug, Inc. v. Fed. Trade Comm'n, 450 F.2d 698, 670 (D.C. Cir. 1971). The law is unconcerned with scorn directed at the agency because "[w]henever an agency's actions are opened to public view, the agency exposes itself to pressure and criticism." Tax Analysts, 117 F.3d at 618.
Hence, the agency must establish that it has never implemented the opinions or analyses contained in the document, incorporated them into final agency policy or programs, referred to them in a precedential fashion, or otherwise treated them as if they constitute agency protocol. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 161 (1975); see also Tax Analysts, 117 F.3d at 617-18; SafeCard, 926 F.2d at 1205; Coastal States, 617 F.2d at 866, 869. The labels assigned to the documents by the agency (e.g., "formal," "binding," "precedential," "final," "adopted," "draft," or "deliberative") are not dispositive in this regard, and conclusory or general assertions contained in declarations are insufficient. See Schlefer, 702 F.2d at 240-44; Coastal States, 617 F.2d at 867-68; see also Tax Analysts, 117 F.3d at 617. The mere fact that the agency has accepted a document's conclusion, however, does not mean that the document is postdecisional. Nat'l Council of La Raza v. Dep't of Justice, 411 F.3d 350, 358 (2d Cir. 2005). Rather, the agency must have adopted the document's rationale. See Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168, 184 (1975); see also La Raza, 411 F.3d at 359; Afshar v. Dep't of State, 702 F.2d 1125, 1143 n.22 (D.C. Cir. 1983). The Supreme Court has recognized that agencies are engaged in a constant process of policy evaluation and revision. Sears, 421 U.S. at 153 n.18; see also Wilderness Society, 344 F. Supp. 2d at 13. Accordingly, a document that, in a "follow-up" capacity, discusses or analyzes a policy that was previously adopted by the agency will not be considered postdecisional unless its recommendations and assessments form the basis for the agency's continued maintenance, or subsequent abandonment or revision, of the pre-existing policy. See Wilderness Society, 344 F. Supp.2d at 13.
Generally, material is considered deliberative if it "'reflect[s] the give-and-take of the consultative process.'" See Tax Analysts, 117 F.3d at 617 (quoting Coastal States, 617 F.2d at 866). There is some overlap between the "predecisional" and "deliberative" requirements, however. Accordingly, the assessment of a document's deliberative nature may be a function of whether it is properly deemed predecisional. Id. Despite this seeming circularity, the D.C. Circuit has held that documents that evaluate the relative "strengths and weaknesses of alternative views" are not protected -- despite appearing, at first blush, to qualify as deliberative -- if they constitute an agency's statement of the law. See id. This is because "[t]he government's opinion about what is not the law and why it is not the law is as much a statement of government policy as its opinion about what the law is." Id. Hence, a document that "reflects a view eventually rejected by a field [employee may] . . . still represent the opinion of the [agency]," in which circumstance "the public can only be enlightened by knowing what the [agency] believes the law to be." Id. It is incumbent upon the agency, then, to establish "'what deliberative process is involved, and the role played by the documents in issue in the course of that process.'" Coastal States, 617 F.2d at 869; see also Senate of Puerto Rico, 823 F.2d at 585-86. Documents that do not provide advice to a superior, suggest the disposition of a case, discuss the relative pros and cons of a specific approach, or constitute "one step of an established adjudicatory process," but rather constitute "straightforward explanations" of an agency's pre-existing policy or regulations against the backdrop of specific or hypothetical factual situations, are not deliberative. Coastal States, 617 F.2d at 868.
To determine whether a document is recommendatory in nature, courts often consider the following traits: language; tone; circulation stream; apparent purpose; relative hierarchical positions of the drafter and recipients; depth and extent of subsequent adherence or reference to, or citation of, the document; and whether the agency has ever used the document to train personnel, treated it as precedential, or described it as having been "amended" or "rescinded," for example. See, e.g., Coastal States, 617 F.2d at 860, 868; see also Arthur Andersen & Co. v. Internal Revenue Serv., 679 F.2d 254, 257 (D.C. Cir. 1982) ("The designation of . . . documents as 'drafts' does not end the inquiry."); Wilderness Society, 344 F. Supp. 2d at 13 (citing the agency's failure to tie the documents to particular authors and recipients, and to provide their titles, as a partial basis for ordering disclosure). As a general rule, the party invoking the deliberative process privilege is only entitled to withhold the deliberative and predecisional portions of the document -- that is, purely factual information is ordinarily considered segregable. This is not the case, however, when the disclosure of the factual material would inappropriately expose the deliberative process, or when the material is otherwise incapable of being extracted without compromising the deliberative process. See Heartwood, Inc. v. United States Forest Serv., 431 F. Supp. 2d 28, (D.D.C. 2006) (citing Wash. Res. Project, Inc. v. Dep't of Health, Ed. & Welfare, 504 F.2d 238, 249 (D.C. Cir. 1974)); Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992)).
"The [deliberative process] privilege was fashioned in cases where the governmental decisionmaking process is collateral to the plaintiff's suit." In re Subpoena Duces Tecum, 145 F.3d 1422, 1424 (D.C. Cir.), modified, 156 F.3d 1279 (D.C. Cir. 1998) (citing In re Subpoena Served Upon the Comptroller of the Currency, 967 F.2d 630 (D.C. Cir. 1992)). Accordingly, the privilege may not apply if the plaintiff's cause of action is "directed at the government's intent." Id.; see also Dep't of Econ. Dev. v. Fetherston, 139 F.R.D. 295, 299 (S.D.N.Y. 1991); Grossman v. Schwarz, 125 F.R.D. 376, 385 (S.D.N.Y. 1989); United States v. AT&T Co., 524 F. Supp. 1381, 1389-90 (D.D.C. 1981). Quite simply, under such circumstances, "the privilege's raison d'etre evaporates." In re Subpoena Duces Tecum, 145 F.3d at 1424; see also 156 F.3d at 1280. Here, GE submits that the privilege "is a nonsequitur" because the pattern and practice claim is squarely directed at EPA's intent. Specifically, GE points to its supporting allegations, which it claims assert that
EPA intentionally uses its UAO authority so as to (1) impose an immediate deprivation on UAO recipients; (2) to prolong UAOs to deprive respondents of any meaningful opportunity to be heard on challenges to EPA's action; (3) to penalize [potentially responsible parties] that seek to pursue judicial review of UAO decisions; and (4) to compel respondents to take actions that are not justified by any environmental emergency.
Pl.'s Mem. Supp. at 11, 12.
GE notes that the applicable legal standard under which the merits of its pattern and practice claim will ultimately be evaluated is the test set forth in Mathews v. Eldredge, 424 U.S. 319 (1976). Under this test, the Court must balance the private interest affected by the enforcement-first program, the risk of an erroneous deprivation of that interest (along with the value of any additional or substitute safeguards), and the value of the program to the government. GE contends that Mathews directly calls for a demonstration of EPA's subjective intent because the pattern and practice claim alleges that EPA has misused its UAO authority in order to
pursue less weighty interests, such as shifting the bill to 'deep pockets' with little or no connection to a site, alleviating political pressures by compelling [PRPs] to take actions that are not justified by environmental needs, and protecting its effectively unreviewable UAO authority by strategically leveraging and maximizing potential penalties to discourage if not preclude any meaningful opportunity for a hearing. . . . EPA's intentional decisions to use its UAO authority for political and strategic purposes without regard to any true environmental emergency has resulted in an increased risk and actuality of erroneous environmental response decisions.
Pl.'s Mem. Supp. at 12.
Despite the surface appeal of GE's argument, the Court disagrees. Although the nature of a pattern and practice claim is somewhat different from a plain vanilla procedural due process claim, the challenge nevertheless remains directly focused on procedure, the deprivation that has resulted from the procedure, and the value of the procedure to the government. It may well be that EPA's subjective intent is relevant to the "value" inquiry, but it is certainly not the essence of GE's challenge. Even assuming that exposure of EPA's subjective intent might assist GE in making a more convincing case, such a showing is not required in order for GE to prevail. Quite simply, the program either does or does not have certain characteristics; it either does or does not deprive PRPs of property or liberty; it either does or does not have a certain value to the government; and that value either is or is not greater than the PRPs' interest in an alternative or more traditional procedure. That assessment does not turn on EPA's subjective intent. At no point, then, is the Court called upon directly to probe EPA's actual motivation.
Indeed, the fact that the D.C. Circuit has chosen to use discrimination claims as illustrative of the type of case in which the privilege is rendered inert is particularly telling. See In re Subpoena Duces Tecum, 145 F.3d at 1424. In a cause of action arising under Title VII, for example, the employer's motivation is "the issue." Id. at 1424; cf. Jones v. City of Modesto, 408 F. Supp. 2d 935, 963 (E.D. Cal. 2005) (stating that "a due process claim does not consider the [d]efendant's motive," but suggesting that motive is relevant to whether punitive damages are a proper remedy for a due process violation); Williams v. Wilkinson, 122 F. Supp. 2d 894, 904 (S.D. Ohio 2000) (stating, with respect to a claim of deliberate indifference brought pursuant to 42 U.S.C. § 1983, that "subjective intent is not an element of a claim of deprivation of procedural due process under the Fourteenth Amendment," although intent must be considered objectively); Howard v. Grinage, 82 F.3d 1343, 1352 (6th Cir. 1996) (finding, in the context of a deliberate indifference claim under § 1983, that "[i]f the conduct resulting in the deprivation [meets the objective standard for deliberate indifference, then] a constitutional violation results even if the decision to deprive was made with the best of motives"); Franco v. Moreland, 805 F.2d 798, 801 (8th Cir. 1986) (holding that "[n]either justification nor good motive is a defense when a liberty interest gives one a right to notice of charges and an opportunity to explain"). In this case, the Court cannot say that the procedural due process claim, dressed in the garb of a pattern and practice challenge, is sufficiently analogous to an action focused on the government's intent so that the deliberative process privilege is unavailable to EPA.
Where, as here, the deliberative process privilege does apply, it is still only a qualified protection, however, and it yields in the face of a party's overriding need. See Hinckley, 140 F.3d at 285; see also In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997). A "key insight" that underscores the privilege is that "governmental decisionmakers will frequently disagree and debate many options before they reach any final conclusion, and that such predecisional and deliberative discussions and disputes should be protected from public review." Hinckley, 140 F.3d at 285-86. A sufficient showing of need may be found "'where there is reason to believe the documents sought may shed light on governmental misconduct . . . on the grounds that shielding internal government deliberations in this context does not serve the public's interest in honest, effective government.'" Id. at 285 (quoting In re Sealed Case, 121 F.3d at 738). However, the privilege is not denied whenever someone seeking the information at issue establishes that "there was disagreement within the governmental entity at some point in the decisionmaking process." Id. at 285. Rather, the Court must engage in "'a balancing of the competing interests, taking into account factors such as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation, the role of the government, and the possibility of future timidity [that would compromise deliberative candor] by government employees.'" Id. at 286 (quoting In re Sealed Case, 121 F.3d at 737-38).
B. EPA's Sampling
In an effort to carry its burden to establish that the documents at issue are deliberative and predecisional, EPA has submitted declarations from senior officials at the Office of Enforcement Compliance Assistance (hereinafter "OECA") and each of EPA's ten regions. See, e.g., Defs.' Exh. 10 ("Nakayama Decl."); Defs.' Exh. 13 ("Varney Decl."). From the declarations, the Court has ascertained that lower-level officials reviewed all of the documents for which their regions or offices claimed the privilege, while higher-level officials typically reviewed a smaller representative sampling generated by the lower-level officials. The declarations of the higher-level officials address the documents by category, describing their general nature, listing the particular documents in that category that comprise the sampling, reciting the elements of the deliberative-process privilege, and stating that the elements are satisfied with respect to the documents in the sampling (and, accordingly, with respect to all documents in that category). Documents that do not comfortably fit within the enumerated categories are addressed individually, in similar fashion. Within and among regions and offices, the declarations are nearly identical in terms of language, structure, and approach.
It is, of course, undeniable that categorical declarations may only go so far in establishing the applicability of the privilege. The deliberative-process privilege is extremely document-specific, and, as EPA has repeatedly asserted in its memoranda, it is difficult to assess the propriety of privilege determinations based just on categorical assertions. To be sure, some of the documents addressed in the declarations are included in the sampling that EPA has provided to the Court, but that is not true for the entirety of the sampling.
One deficiency in the declarations is their conclusory analysis. The declarations frequently attempt to satisfy the elements of the privilege merely by using those elements as "buzz words" in their privilege assertions. For example, the Ergener Declaration for OECA states that "the documents reflect the personal opinions of Agency staff and the internal, pre-decisional deliberation of Agency staff and officials leading to the development of final Agency positions on policy and case-specific CERCLA enforcement issues." Defs.' Exh. 20 ("Ergener Decl.") at 4. But this statement does not by itself establish that the documents are predecisional as contemplated by the deliberative process privilege. See also Ergener Decl. at 5. Specifically, the broad assertion fails to identify the particular CERCLA enforcement policy (or some step in the development thereof) that the documents relate to, and makes clear that the agency has (as confirmed by the Court's in camera review) withheld documents as predecisional and deliberative simply because they precede and relate to a decision in a particular case. This is insufficient, because straightforward applications of pre-existing law or policy to particular factual situations are not considered deliberative. See Coastal States, 617 F.2d at 868. Documents that simply "play into" a case- or investigation-specific decision do not fall under the privilege's protective umbrella because the final decision in the specific case or investigation is reached by applying policies, procedures, and laws that have already been established. Id. The deliberative-process privilege is concerned with the development and revision of the policies, procedures, or laws that would be used to shape case-specific determinations.
Moreover, the law is clear that declarations containing conclusory or general assertions that certain materials "have no official or binding effect," "are not treated as authority or precedent in other matters under consideration", "can be freely rejected by decision-making officials," or are created by persons who "do not have authority to make final decisions on the matters," e.g., Ergener Decl. at 4, are insufficient alone to satisfy the burden of establishing that the documents are deliberative. See Schlefer, 702 F.2d at 240-44; Coastal States, 617 F.2d at 867-68; see also Tax Analysts, 117 F.3d at 617. Even assuming that the assertions in the declarations are correct, they do not establish that agency employees have not implemented the viewpoints in the documents or acted pursuant to them. When a specific rationale forms the basis for an employee's dealings with the public, it has become the "law" at least with respect to those particular dealings, whether or not the agency has formally adopted it, intended to follow it, or assigned it "precedential" or "binding" status. See Schlefer, 702 F.2d at 237. Quite simply, agencies act only through their employees. If the recommendations in the documents have actually been routinely followed by agency employees, they do not qualify for protection under the deliberative-process privilege, because they have become the agency's position by virtue of their implementation in specific cases against members of the public. EPA's declarations do not convince the Court that although its employees are theoretically free to reject the positions articulated in many of the documents, they have actually done so.
The insufficiency of the declarations is particularly evident with respect to those documents that use authoritative, rather than suggestive, language and tone, with an apparent purpose of establishing or articulating policy rather than merely recommending it. In a similar vein, the fact that a document is a draft, rather than final, memorandum does not (standing alone) establish that it is not a statement of agency policy or position. The drafting process is not always substantive in nature, often concerning such technical, minor matters as whether to use a comma rather than a semi-colon. Finally, there is an insufficient indication that EPA has withheld only those portions of the documents that fit within the privilege. Not only does the Court's in camera review suggest that no segregability analysis has been undertaken, but EPA has never challenged GE's assertion that it failed to engage in such a process. Hence, EPA must re-assess its deliberative-process privilege assertions regarding the material identified by the Court in Table T-1 as possibly protected.*fn3 The Court has, wherever possible, otherwise made determinations, as reflected in Table T-1, on assertions of deliberative process privilege for the sample documents based on the legal principles set forth in this Memorandum Opinion.
II. The Work-Product Doctrine
A. Parameters of the Doctrine
The purpose of the work-product doctrine is to ensure that "a lawyer [can] work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel," and to permit attorneys to "assemble information, sift what [they] consider to be the relevant from the irrelevant facts, prepare [their] legal theories and plan [their] strateg[ies] without undue and needless interference." Hickman v. Taylor, 329 U.S. 495, 510-11 (1947). To this end, it "provides a working attorney with a 'zone of privacy' within which to think, plan, weigh facts and evidence, candidly evaluate a client's case, and prepare legal theories," Coastal States, 617 F.2d at 864, so long as the document at issue was "created for use at trial or because a lawyer or party reasonably anticipated that specific litigation would occur and prepared [it] to advance the party's interest in the successful resolution of that litigation," Willingham v. Ashcroft, 228 F.R.D. 1, 4-5 (D.D.C. 2005); see Delaney, Migdail & Young, Chartered v. IRS, 826 F.2d 124, 127 (D.C. Cir. 1987) (identifying "the function of the documents as the critical issue"). To determine whether a document was "prepared in anticipation of litigation," a court must examine the nature of the document, the factual situation in the particular case, and whether the lawyer had a subjective and reasonable belief (as judged by objective standards) that "litigation was a real possibility." In re Sealed Case, 146 F.3d 881, 884 (D.C. Cir. 1998). If the document "would have been prepared in essentially similar form irrespective of the litigation[,] . . . it [cannot] fairly be said that [it was] created because of actual or impending litigation." Id.
Because the purpose of the doctrine is to protect the integrity of the adversarial process, documents should not be withheld if their disclosure would not fairly be expected to impact pending or impending litigation. See Evans v. Atwood, 77 F.R.D. 1, 8 (D.D.C. 1997). Documents prepared for some purpose other than litigation, moreover (for example, material generated in the ordinary course of business), likewise do not fall within the doctrine's ambit. See Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1515 (D.C. Cir. 1993). With respect to a document that was generated for more than one purpose, the work-product doctrine will only apply if litigation played a substantial role in its creation. See Willingham, 228 F.R.D. at 4 (citing Jumpsport, Inc. v. Jumpking, Inc., 213 F.R.D. 329, 347-48 (N.D. Cal. 2003)). Under the work-product doctrine's shield, materials prepared by or for parties, or by or for the parties' representatives (including attorneys, consultants, sureties, indemnitors, insurers, and agents), are protected. Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369 (D.C. Cir. 2005). The term "litigation" is interpreted broadly to encompass not only trials and other judicial proceedings, but also adversarial administrative matters, settlement negotiations, and the avoidance of anticipated litigation. See, e.g., Public Citizen, Inc. v. Dep't of State, 100 F. Supp. 2d 10, 30 (D.D.C. 2002), overruled in part on other grounds, 276 F.3d 634 (D.C. Cir. 2002); Cities Serv. Co. v. FTC, 627 F. Supp. 827, 832 (D.D.C. 1984); Carey-Canada, Inc. v. Aetna, 118 F.R.D. 250, 251-52 (D.D.C. 1987). Although one must be cautious not to sweep all attorney efforts on the entire § 106 program at EPA within the umbrella of the work-product doctrine, presumably "litigation" includes the issuance and enforcement of specific UAOs, the development and enforcement of specific Consent Decrees, and other specific CERCLA-related regulatory proceedings or actions.
The documents need not have been prepared in anticipation of a particular claim, see Schiller v. NLRB, 964 F.2d 1205, 1209 (D.C. Cir. 1992) (citing Delaney, 826 F.2d at 127), but there must be some specificity to an assertion of work-product protection. It is not enough for the documents to relate to some unspecified claim that may conceivably be brought by some unidentified party at an unknown point in the future. Hence, documents that relate only generally to a broad agency program that is investigatory or adversarial in nature are not properly considered to have been "prepared in anticipation of litigation." See Coastal States, 617 F.2d at 865 ("To argue that every audit is potentially the subject of litigation is to go too far. While abstractly true, the mere possibility is hardly tangible enough to support so broad a claim of privilege."). Such a broad interpretation of the doctrine would shield all materials prepared by lawyers working for agencies that have significant law enforcement or investigatory duties, and, therefore, would foreclose the liberal discovery contemplated by the Federal Rules of Civil Procedure. Id. The focus, then, is whether, under the totality of the circumstances surrounding the document, it may fairly be said to have been created with an eye toward advancing the client's interest in specific litigation. See Willingham, 228 F.R.D. at 4.
Accordingly, a work-product assertion must be supported by some articulable, specific fact or circumstance that illustrates the reasonableness of a belief that litigation was foreseeable. Compare In re Sealed Case, 146 F.3d at 885-86 (protecting documents created with awareness that the FEC was investigating and initiating civil actions concerning possible statutory violations where press coverage indicated that litigation against specific party was probable); Schiller, 964 F.2d at 1208 (protecting an internal NLRB memorandum that "contain[ed] advice on how to build an [Equal Access to Justice Act] defense and how to litigate EAJA cases," as well as other documents that outlined instructions for preparing and filing pleadings, contained legal arguments, and identified supporting authorities); Delaney, 826 F.2d at 126-27 (protecting IRS documents that identified the "types of legal challenges likely to be mounted against a proposed program, potential defenses available to the agency, and the likely outcome"); and SafeCard, 926 F.2d at 1202-03 (protecting documents prepared by SEC lawyers "in the course of an active investigation focusing upon specific events and a specific possible violation by a specific party"), with Coastal States, 617 F.2d at 864-66 (refusing to shield advice memoranda prepared by agency attorneys in response to requests from agency auditors investigating regulatory compliance because they only contained interpretations of agency law, not advice regarding how to proceed with particular investigations), and Evans, 177 F.R.D.at 7 (refusing to shield agency manual and guidelines that were "promulgated as general standards to guide the Government lawyers in determining whether or not to bring an individual to trial in the first place"). Sufficient specificity is typically inferred from, for example, the document's identification or discussion of a particular violation, alleged violator, investigation, or legal challenge, defense, strategy, or argument. See Equal Employment Oppty. Comm'n v. Lutheran Social Servs., 186 F.3d 959, 968-69 (D.C. Cir. 1999). This is particularly important when the document was created by a government lawyer who was acting as a prosecutor or investigator. See In re Sealed Case, 146 F.3d at 885-88. "Where . . . lawyers claim they advised clients regarding the risks of potential litigation, the absence of a specific claim represents just one factor that courts should consider in determining whether the work-product privilege applies." Id. at 887. "In some cases, [however], the absence of a specific claim will suggest that the lawyer had not prepared the materials 'in anticipation of litigation.'" Id. When the work-product doctrine applies, its reach is broad. Even the factual portions of a document may be withheld, so long as the document as a whole was created in anticipation of litigation. See Tax Analysts, 117 F.3d at 620 (citing Martin v. Office of Special Counsel, 819 F.2d 1181, 1184-87 (D.C. Cir. 1987)); see also Tax Analysts v. Internal Revenue Serv., 391 F. Supp. 2d 122, 129 & n.8 (D.D.C. 2005). In contrast, if a document was not as a whole created in anticipation of litigation, but a specific portion of that document was, then a court may order disclosure of the document with the work-product material redacted. See Tax Analysts, 117 F.3d at 620; see also Willingham, 228 F.R.D. at 6 & n.3. A party may only overcome the doctrine's protection by making a sufficient showing of need. See Fed. R. Civ. P. 26. Opinion work product -- defined as an attorney's thoughts, impressions, interpretations, and analysis -- is guarded with particular fervor. See Willingham, 228 F.R.D. at 5. Accordingly, a much higher threshold showing of necessity is required to obtain this type of protected material. See id.
B. EPA's Sampling
The Court concludes that EPA has withheld documents that are akin to broad, general training manuals and guidelines. See, e.g., P.L. No. 83; P.L. No. 678. Those are not protected work product and must be disclosed. See Evans, 177 F.R.D. at 7, 8. Similarly, Coastal States forecloses EPA from invoking the doctrine with respect to documents that relate only to broad agency programs or policies. See, e.g., P.L. No. 93; P.L. No. 160; P.L. No. 2814. These documents lack the requisite specificity to have been created in anticipation of litigation that was foreseeable to a reasonable attorney. Essentially, they are the very documents this Circuit has indicated a reluctance to protect. See In re Sealed Case,146 F.3d at 887 (stating that although a specific claim is not always required, its absence in certain cases may illustrate that the document was not prepared in anticipation of litigation). In accordance with the D.C. Circuit's decision in SafeCard, however, documents that were created with a particular site, PRP, investigation, event, or violation in mind are generally protected because they possess a reasonable nexus to the anticipation of foreseeable and specific litigation. See, e.g., P.L. No. 2304; P.L. No. 2358; P.L. No. 1425. Documents which are less specific, but nonetheless analyze legal claims, arguments, strategies, or defenses for future litigation, may be withheld in accordance with the decisions in Delaney and Schiller. See, e.g., P.L. No. 4771. Finally, the documents that appear to have been created for some other purpose than to assist in reasonably foreseeable litigation are not properly withheld as work product. See, e.g., P.L. No. 1094; P.L. No. 5638. Any portions of documents that satisfy the doctrine's elements, however, may be withheld. Table T-1 includes the Court's determinations on the application of the work-product doctrine to the representative sample of EPA documents.
III. The Attorney-Client Privilege
A. Parameters of the Privilege
"The attorney-client privilege protects confidential communications made between clients and their attorneys when the communications are for the purpose of securing legal advice or services." In re Lindsey, 158 F.3d at 1267. It "reflects society's judgment that promotion of trust and honesty within the relationship is more important than the burden placed on the discovery of truth." Coastal States, 617 F.2d at 862. The underlying purpose of the privilege is to protect a client's disclosures so as to foster the full and frank communications that are necessary for effective legal representation, and its protective umbrella extends to written, as well as spoken, communications. Id. In this vein, the privilege only extends to "'those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege.'" Id. The scope of the privilege is not limited to the litigation context or to specific disputes; rather, it encompasses "all situations in which an attorney's counsel is sought on a legal matter." Id.
The protections of the privilege "are not lost because an attorney consults other attorneys about the subject-matter of the communication," and will extend to "communications between attorneys and all agents or employees of the organization[al client] who are authorized to act or speak for the organization in relation to the subject-matter of the communication." Mead Data Central, Inc. v. Air Force, 566 F.2d 242, 253 n.24 (D.C. Cir. 1977). To be protected under the privilege, the information must have been confidential at the time of the communication, and that confidentiality must have been preserved since. Coastal States, 617 F.2d at 863. The agency bears the burden "to demonstrate that confidentiality was expected in the handling of the communications, and that it was reasonably careful to keep this confidential information protected from general disclosure." Id. Information that is obtained from third parties and communicated to agency lawyers by agency employees is not protected if "no new or confidential information concerning the Agency is imparted in the process." See Schlefer, 702 F.2d at 245. Under such circumstances, the purpose of the privilege is not furthered because the communication between the agency and its attorneys does not "contain private information concerning the agency." Coastal States, 617 F.2d at 863. Likewise, the legal conclusions of the agency or its lawyers are not protected if they rest on such third-party information. See id. at 862-63; see also Tax Analysts, 117 F.3d at 619; Schlefer, 702 F.2d at 245. Just as in the context of the deliberative process privilege, the attorney-client privilege dissolves if the communication has been adopted as agency policy. See La Raza, 411 F.3d at 360-61. Presumably, this rule is a hybrid outgrowth rooted in the privilege's purpose (to protect confidential matters), the law's intolerance for the maintenance by a federal agency of a body of "secret law," and the fact that the privilege applies only when attorneys are acting as attorneys.
GE's contention that government lawyers are categorically less entitled than private lawyers to invoke the attorney-client privilege as a basis for withholding information is without merit. See Pl.'s Mem. Supp. at 8-10; Pl.'s Reply at 3-4. GE's reliance on In re Lindsey to this end is misplaced. That case addressed a unique situation not presented here: whether White House counsel could invoke attorney-client privilege during an ongoing grand jury investigation in order to shield information concerning possible criminal activity by a government officer. In re Lindsey has a far more limited scope, then, than GE acknowledges. Indeed, that decision clearly confirms that "government officials will still enjoy the benefit of fully confidential communications with their attorneys unless the communications reveal information relating to possible criminal wrongdoing." In re Lindsey, 158 F.3d at 1276 (emphasis added); id. at 1273 (stating that the "obligation of a government lawyer to uphold the public trust reposed in him or her strongly militates against allowing the client agency to invoke a privilege to prevent the lawyer from providing evidence of the possible commission of criminal offenses within the government") (emphasis added).
To be sure, GE is correct that when government attorneys are "in effect . . . making law," they may not properly invoke the protections of the attorney-client privilege. In that context, the communications are made not for the purpose of securing legal advice or services, but rather for the purpose of developing policy. When government attorneys are functioning in the same capacity as do private attorneys, however, then the ordinary protections available to private clients and attorneys apply no differently to government agencies and attorneys. See, e.g., In re Lindsey, 158 F.3d at 1269 (quoting Coastal States, 617 F.2d at 863; Mead Data Central, 566 F.2d at 249, 253, 255 n.32). If an agency "'is dealing with its attorneys as would any private party seeking advice to protect personal interests, [then it] needs the same assurance of confidentiality so [that] it will not be deterred from full and frank communications with its counselors,'" In re Lindsey, 158 F.3d at 1269 (quoting Coastal States, 617 F.2d at 863), and confidentiality of the communication may be inferred, see, e.g., Electronic Privacy Information Ctr. v. Dep't of Homeland Security, 384 F. Supp. 2d 100, 116 (D.D.C. 2005) (citing Coastal States, 617 F.2d at 863). In this context, "'the 'client' [is] . . . the agency and the attorney [is] . . . the agency lawyer." Tax Analysts, 117 F.3d at 618. There is no authority or justification, then, for extending the principle established in In re Lindsey beyond the narrow context that it was meant to address.*fn4
With respect to organizational clients (such as government agencies), attorneys often have more than one role, and the line between those functions is not always easily ascertainable. For example, no private attorney has the power to regulate the rights, responsibilities, or conduct of the public by setting policy. Private attorneys do, however, perform functions that evaluate the legality (or legal advisability) of actions proposed by the client (as when a company asks its attorney to assess whether a particular method of calculating its federal taxes comports with the law, or whether it would be prudent and legal to deal with its business partners in a specific manner). Quite simply, to be protected under the privilege, the communication must relate to some legal strategy, or to the meaning, requirements, allowances, or prohibitions of the law. Accordingly, a memorandum from an agency attorney that assesses whether the facts surrounding a particular alleged violation satisfy the applicable legal standards for pursuing a PRP, or whether the provisions in a draft UAO are consistent with the law, may be protected. A draft UAO created by an attorney, however, may not be protected by the attorney-client privilege because it is not legal advice; instead, it amounts to an affirmative determination by the agency that the party is legally responsible for a specific violation, and assigns certain attendant responsibilities and penalties.*fn5
It is the province of a lawyer within the bounds of the privileged attorney-client relationship to weigh the legal risks associated with certain undertakings, tailor those undertakings to the requirements of the law, prevent a client from running afoul of the law, and zealously represent the client's legal interests. But the privileged role of an attorney does not encompass the establishment of broad agency policy, adjudication of responsibilities, assessment of penalties, or other functions that create the law. Hence, when an attorney is acting more in the nature of a business advisor, legislator, adjudicator, or regulator, the attorney-client privilege generally does not apply. See In re Lindsey, 158 F.3d at 1269; Coastal States, 617 F.2d at 863; Mead Data Central, 566 F.2d at 249, 253, 255 n.32. Tellingly, these types of communications also would not commonly reflect confidential information concerning the client agency. See, e.g., P.L. No. 3211; P.L. No. 5995; P.L. No. 767; P.L. No. 2408.
B. EPA's Sampling
Some of the documents EPA has withheld do not involve agency attorneys functioning in the same fashion as do private attorneys. Rather, they involve agency attorneys drafting or establishing broad policy, recommending a regulatory action or determination, or otherwise performing tasks that are in the nature of adjudication or regulation. See, e.g., P.L. No. 2358; P.L. No. 2408; P.L. No. 2814; P.L. No. 2831; P.L. No. 3211. In the context of this case and GE's pattern or practice due process challenge, such documents do not reflect the provision of confidential legal advice to the client agency, they do not concern legal strategy, and they do not reflect information that is confidential with respect to the client agency. To the contrary, when they reflect any confidential information at all, it is most often information provided by a third-party -- the PRP.
EPA has failed to identify recipients for some of the documents in the sampling. See, e.g., P.L. No. 5239; P.L. No. 1094. The purpose of the attorney-client privilege is to foster the full and frank communication required to enable effective legal representation through the protection of client confidences. When non-essential third-parties (for example, agency personnel who are not authorized to act or speak on behalf of the agency with respect to the subject matter addressed in the document and who are not lawyers providing legal advice) are made privy to protected material, the privilege dissolves. EPA -- the party that bears the burden of establishing its privilege assertions -- has provided the Court with little information to support a finding that certain documents have been shielded from exposure to non-essential third-parties.
It is worth reiterating that the privilege protects communications, not necessarily the underlying subject matter of the communications. For example, a conversation, a recording of a conversation, or a written communication may be protected, but an attorney's notes regarding the subject matter may not be protected if they do not reflect the confidential communication. Put another way, it is not necessarily the case that when a client contacts an attorney for legal advice, anything the attorney has produced regarding the subject matter of that contact is covered by the attorney-client privilege. Accordingly, for documents that do not take a form that is apparently communicative, or that do not by themselves reflect the fact of a confidential communication, some showing that the documents were prepared for transmission to someone else -- even if they were never actually sent -- will ordinarily be required. For some documents, EPA has failed to identify any intended or actual recipients. See, e.g., P.L. No. 1482; P.L. No. 1724; P.L. No. 1823; P.L. No. 5009. Again, the Court's application of attorney-client privilege law to the sample of EPA documents is found in Table T-1.
With respect to the particular documents and unique factual context of this case, application of the attorney-client privilege and work product doctrine have occasionally produced results that may, on the surface, seem inconsistent because some documents (involving specific UAOs, for example) are protected work product but do not come within the attorney-client privilege. To be sure, there is some tension inherent in this result. However, it is an odd but unavoidable consequence of the distinct purposes and requirements of the two protections -- where one is generous, the other is restrictive. Although the attorney-client privilege does not require that a document have been created in anticipation of specific litigation, it does require that the attorney act in a legal (rather than, for example, a regulatory or business) capacity. The work product doctrine, on the other hand, does not so constrain an attorney who fills more than one role, so long as the document at issue was created in anticipation of "litigation." The doctrine broadly defines "litigation" to include nearly any adversarial agency proceeding as long as there is some specificity regarding a particular party, offense, or proceeding. Hence, some materials can be work product (i.e., created by an attorney in anticipation of broadly-defined litigation) yet not be within the attorney-client privilege because the attorney is performing a regulatory or enforcement role at the agency.
IV. Subject-Matter Waiver
GE argues that, based upon the concept of subject-matter waiver, EPA's inadvertent disclosure of documents that are "substantively identical" to other documents that have been withheld has waived any otherwise-applicable privilege or protection with respect to withheld documents of the same type. The Court ordered GE to submit the documents that were allegedly disclosed inadvertently by EPA. Of the ninety-two documents submitted, EPA actually asserts privilege over just twenty-four.*fn6
A. Waiver of the Deliberative Process Privilege
The concept of subject-matter waiver is almost uniquely a function of the attorney-client relationship. There is no authority for applying the waiver rule to the deliberative process privilege. As EPA argues, disclosure of a deliberative document waives the privilege only as to that document, not as to others dealing with the same subject matter. Defs.' Mem. Opp'n at 19. Interestingly, GE acknowledges this, but then subtly attempts to persuade the Court that, based upon principles and considerations that apply in the context of other privileges and protections, the waiver rule should be expanded to encompass the deliberative-process documents at issue here. However, there is no indication that EPA has attempted to manipulate the discovery process, or has acted inequitably or otherwise in bad faith. To the contrary, the record shows that EPA carefully considered its privilege claims, has acquiesced in GE's requests that it reconsider those claims, and has even made additional disclosures when warranted. This demonstrates a good faith effort to work with GE and to operate within the confines of the deliberative process privilege's contours. The fact that EPA has also sought to protect its interests by using available privileges to avoid disclosing anything more than it reasonably believes necessary does not persuade the Court otherwise. This case, then, does not present circumstances that would justify the unprecedented action of importing the waiver rule into the realm of the deliberative process privilege.
B. Waiver of the Work-Product Doctrine
"[A] waiver of the . . . work product [doctrine] as to particular documents does not extend to other documents addressing the same subject matter." In re United Mine Workers of Am. Employee Benefit Plans Litig., 159 F.R.D. 307, 310-11 (D.D.C. 1994); see Hertzberg v. Veneman, 273 F. Supp. 2d 67, 81-82 & n.8 (D.D.C. 2003); Mineba Co., Ltd. v. Pabst, 228 F.R.D. 34, 36-37 (D.D.C. 2005). To be sure, notions of implicit waiver have, on occasion, surfaced in the work-product case law with respect to inequitable conduct by the disclosing party. But the doctrine's protective umbrella is only compromised when setting it aside would directly further its underlying policy. See, e.g., U.S. ex rel. Fago v. M&T Mort. Corp., 235 F.R.D. 11, 16-17 (D.D.C. 2006); Bowles v. Nat'l Ass'n of Home Builders, 224 F.R.D. 246, 258-59 (D.D.C. 2004); In re United Mine Workers, 159 F.R.D. at 312. Hence, if a party seeks to use the doctrine not as the "shield" that it was intended to be, but rather as a "sword" to unfairly influence the outcome of the proceedings, then the integrity of the adversarial system is most effectively preserved by removing the doctrine from that party's litigation arsenal. See In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1992). That, however, is not the factual setting presented here. The Court will not ignore the purpose and function of the work-product doctrine simply because doing so would make it easier for GE in this litigation. In this case, the integrity of the adversarial system is furthered not by rendering the work-product doctrine inert, but rather by allowing it to function reasonably. As discussed above, there are no circumstances presented here that would justify an unprecedented extension of the waiver rule to the work-product context.
C. Waiver of the Attorney-Client Privilege
"[T]he confidentiality of communications covered by the [attorney-client] privilege must be jealously guarded by the holder of the privilege lest it be waived. The courts will grant no greater protection to those who assert the privilege than their own precautions warrant." In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989). Hence, a privilege holder's inadvertent disclosure of privileged materials will effect a waiver that "'extends to all other communications relating to the same subject matter.'" Id. at 980-81 (citing In re Sealed Case, 676 F.2d at 809). Of the twenty-four inadvertently-disclosed documents, EPA asserts attorney-client privilege over eighteen.*fn7 EPA concedes that, with the exception of perhaps one document, its disclosures were inadvertent.*fn8 Moreover, EPA acknowledges that the inadvertent disclosures have regretfully caused some subject-matter waiver of the privilege, but resists GE's expansive interpretation of that concept. According to EPA, subject-matter waiver should extend only to the inadvertently-disclosed documents themselves, to copies of those documents, and to other documents that are virtually identical. GE, on the other hand, suggests that the scope of waiver here encompasses all documents of the same type as the inadvertently-disclosed materials, as well as those that relate to the broader content of the documents, defined generically by GE as UAOs and enforcement.
The question, then, is how broadly or narrowly to define the subject matter of the inadvertently-disclosed documents. Not surprisingly, the Court resolves this issue between the extremes advanced by the parties. The scope of subject-matter waiver is a matter that rests within the Court's discretion. See M&T Mort. Corp., 2006 WL 845847, at *5 (citing United Mine Workers, 159 F.R.D. at 309); see also In re Sealed Case, 877 F.2d at 981. Ordinarily, a court's decision will be informed by the particular circumstances of the case and the conduct of the party seeking to avail itself of the privilege. See In re Sealed Case, 877 F.2d at 980-81; Bowles, 224 F.R.D. at 260. In light of these principles, the Court concludes that the scope of waiver urged by GE is unduly broad in the context of this case. GE's reliance upon the label assigned to the categories of documents and a broad description of the issues addressed therein, rather than the precise content of the documents, is misplaced. Hence, the accidental release of one workgroup document does not automatically remove the privilege for other workgroup documents unless those documents address the same subject matter and are not covered by other protections. Similarly, the inadvertent disclosure of Document A, which discusses Element 1 of UAO enforcement, does not waive the attorney-client privilege with respect to portions of Document B that focus on Element 2 of UAO enforcement, because Element 2 is not within the reasonably-defined subject matter of Document A. The broad approach advocated by GE is particularly unwarranted where, as here, there is no indication that EPA has acted in bad faith or has disregarded the sanctity of the attorney-client relationship. Indeed, it appears that the inadvertent disclosures were the inevitable result of EPA's attempt to respond conscientiously to GE's extremely broad document requests within a compressed time frame while operating within the confines of its limited resources.
This is not to say, however, that the Court adopts wholesale the waiver interpretation urged by EPA. Although the Court is confident that, despite the inaccuracies that have come to light, EPA has made reasonable efforts zealously to guard its attorney-client privilege, it must be remembered that the raison d'etre of the subject-matter waiver doctrine is to deter careless treatment of documents that should have been more carefully guarded. Hence, the rule makes available to the adversary a broader universe of information than that which is yielded by the inadvertently disclosed documents themselves. In light of EPA's substantial efforts, there is arguably not much carelessness to deter. Nevertheless, mistakes were made, and the waiver rule's purpose is thus implicated. To accept EPA's very narrow interpretation would be to render that purpose a nullity.
Mindful of the parties' competing views, and having considered the specific circumstances of the case, the Court concludes that the subject matter of a specific disclosed document for waiver purposes consists of only the information that is contained within,*fn9 or has by its terms been brought within, the document's four corners. Hence, the inadvertent production by EPA of the eighteen privileged documents has caused a waiver of the attorney-client privilege with respect to: (1) the inadvertently-disclosed documents themselves, and other copies thereof; (2) all drafts and revisions of the inadvertently-disclosed documents, to the extent that they address the same subject matter; (3) comments on, and discussions of, the inadvertently-disclosed documents; (4) those portions of other allegedly-privileged materials that address the precise subject matter of the inadvertently-disclosed documents; and (5) those portions of other allegedly-privileged materials that are incorporated in, or cited for substantive support by, the inadvertently-disclosed documents. This waiver does not, of course, extend to those portions of documents that are subject to another claim of protection, such as the work-product doctrine or deliberative process privilege. Accordingly, EPA will be directed to review the documents identified on its privilege log and to disclose all portions of those documents that fit the Court's subject-matter waiver description, as explained here and applied in Table T-2, attached.
In the end, very little subject-matter waiver has occurred. This is a direct result of the fact that most of the waiver documents are not, as the Court has concluded, covered by the attorney-client privilege in the first instance. Hence, the waiver rule does not apply to those documents. The Court recognizes that there is some latent tension in this result -- although EPA has chosen to assert privilege over the documents, it is actually to EPA's benefit in this context that those documents are not, in the Court's view, actually privileged (because there then is no subject-matter waiver reaching beyond the disclosure of the documents themselves). Nevertheless, the application of the privilege principles developed by the D.C. Circuit to the unique context of this case, the peculiar nature of the UAO enforcement policy developed by EPA, and the specifics of each document mandate the conclusions reached in Table T-2. Of course, in the long run, a narrower scope to the attorney-client privilege than EPA has heretofore asserted will mean that more documents must be produced.
VII. Appointment of a Special Master
The appointment of a special master is, as EPA insists, an "'extraordinary action.'" EPA Mem. Opp'n at 42 (quoting Alexander v. FBI, 186 F.R.D. 128, 133 (D.D.C. 1998)). In its discretion, a court may decide to appoint a special master if it determines that such an action is warranted under the circumstances of the particular case. See Meeropol v. Meese, 790 F.2d 942, 961 (D.C. Cir. 1986); Alexander, 186 F.R.D. at 133. Here, the Court concludes that there is no justification for the assertions of bad faith that implicitly underlie GE's request. Cf. Cobell v. Norton, 224 F.R.D. 1, 4 (D.D.C. 2004) (referring to "abuses" on the part of the government agency -- specifically, lying about its failure to clean up several rodent infestations, spoliation of evidence relevant to plaintiff's claim, and failure to produce documents that were responsive to plaintiff's discovery requests -- as the driving force behind the court's decision to appoint a special master).
Although EPA's privilege assertions may on occasion have been erroneous or overly broad, they were made in good faith, pursuant to individual, document-specific review. In those instances where EPA realized that its previous assertions were misguided, it has reversed or amended its determinations and disclosed unprotected documents. The errors are, in the Court's view, simply the result of EPA's misinterpretation of how certain privileges and protections apply in the amorphous context of agency attorneys who act not only in a fashion similar to private attorneys, but also as regulators, adjudicators, or policymakers. There is no reason to predict that, having reviewed the proper scope of those privileges and protections as set forth in this Memorandum Opinion, EPA will refuse to reevaluate its withholdings consistent with the Court's decision. On the contrary, EPA's voluntary reassessments throughout the discovery process illustrate a willingness to act in accordance with the law. The Court, therefore, agrees with EPA that prior mistakes by a government agency during the disclosure process should not be used presumptively to justify subsequent distrust of that agency's determinations where, as here, the agency has taken steps to correct the earlier mistakes. See Meeropol, 790 F.2d at 952. Beyond the doubts as to the need for a special master, the Court is also not satisfied that appointing one would facilitate a more efficient discovery process. After all, "[i]f the master makes significant decisions without careful review by the trial judge, judicial authority is effectively delegated to [a non-Article III official]; if the trial judge carefully reviews each decision made by the master, it is doubtful that judicial time or resources will have been conserved to any significant degree." Id. at 961.
It is clear, however, that the need for additional and adequate review of EPA's privilege assertions remains. In this regard, EPA will be required to update its current privilege log to remove (i.e., produce) all documents that the Court has determined are not properly withheld, and to reflect only the grounds for withholding that the Court has upheld. EPA should review all of the documents on the updated privilege log in accordance with the proper basis for the withholdings, and then create a final privilege log that includes only those documents that, in light of the principles set forth above, EPA now maintains are properly withheld. From these documents, EPA will be required to generate a new sampling that consists of no more than 50 of the privilege log documents. The Court will then review this sampling and the corresponding entries on the new privilege log in camera.
For the foregoing reasons, the Court concludes that GE's motion will be granted in part and denied in part. EPA shall review its privilege log assertions for all documents in conformity with the principles and findings set forth in this Memorandum Opinion, and generate a fresh sampling for the Court to review in camera. A separate order has been posted on this date.
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