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General Electric Co. v. Johnson

February 5, 2007

GENERAL ELECTRIC CO., PLAINTIFF,
v.
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

MEMORANDUM OPINION

Presently before the Court in this ongoing discovery dispute are plaintiff General Electric's ("GE") objections to the claims of privilege asserted by defendant the Environmental Protection Agency ("EPA" or "Agency") in the revised privilege log and accompanying materials that EPA submitted on October 27, 2006. EPA submitted these materials in response to the Court's Memorandum Opinion and Order issued on September 12, 2006, which granted in part and denied in part GE's motion to compel the production of documents, ordered EPA to reevaluate its privilege claims in light of the legal principles set forth by the Court, and required EPA to submit a second sampling of withheld documents for in camera review. Gen. Elec. Co. v. Johnson, Civ. A. No. 00-2855, 2006 WL 2616187, at *3 (D.D.C. Sept. 12, 2006) ("Memorandum Opinion" or "Mem. Op."). This opinion and the accompanying table set forth the Court's resolution of the objections raised by GE and the Court's determinations with respect to the fifty-two documents submitted for in camera review.

BACKGROUND

The Court's September 12 Memorandum Opinion explains the lengthy factual and procedural background of this case, as well as the contours of the discovery dispute that has now endured for over a year and a half. See 2006 WL 2616187, at *1-*3. In that decision, the Court assessed EPA's claims that 6,177 documents sought by GE were protected by the deliberative-process privilege, the work-product doctrine, and the attorney-client privilege. (The Court also ruled, in a discussion not relevant here, on GE's argument that EPA's inadvertent release of certain documents effected a subject-matter waiver "with respect to withheld documents of the same type." Id. at *17-*20.) After setting forth at length the legal principles that govern each of the three protections asserted by EPA, the Court applied those principles to a sampling of ninety-nine documents that it had reviewed in camera, and explained its findings as to each of the ninety-nine documents in a table appended to the Memorandum Opinion. Those findings were to serve as a guide to the parties, and in particular to EPA, which was directed to review its privilege assertions, produce all of the documents that the Court had determined were improperly withheld, and create a final privilege log that included only those documents that would qualify as protected under the legal principles explained (and illustratively applied) by the Court. Id. at *21. To ensure that EPA complied with these terms, the Court required EPA to generate a new sampling of no more than fifty of the documents that were included in its final privilege log for in camera review.

EPA has now submitted its final privilege log and the required sampling of fifty documents. (EPA has actually submitted fifty-two documents.) Yet despite the parties' previous efforts and the Court's directive in the September 12 Memorandum Opinion, EPA estimates that it is still asserting at least one type of privilege for 4,652 documents - - a relatively modest reduction from the 6,177 documents previously at issue. See Nov. 3, 2006 Errata Letter from Brian H. Lynk to Hon. John D. Bates. Moreover, EPA is now asserting new privilege claims with respect to documents that the Court previously ruled were not protected by other privileges. See Oct. 27, 2006 Letter from Brian H. Lynk to Hon. John D. Bates. GE has responded to EPA's latest privilege claims with a series of objections that are both procedural and substantive. As a procedural matter, GE maintains that EPA has waived the new privilege claims that it now asserts by failing to raise them in any of the three previous privilege logs that it compiled or in any of its prior filings. See GE's Objections at 2. On a substantive level, GE argues (1) that EPA has not carried its burden of demonstrating that thirteen specific categories of documents are protected by the deliberative-process privilege; (2) that, even if the documents are covered by the deliberative-process privilege, GE's need for them outweighs any harm to EPA from production; and (3) that EPA continues to withhold under the work-product doctrine and attorney-client privilege documents that do not qualify for those protections under this Court's earlier Memorandum Opinion.

To address these objections, the Court has proceeded in the following manner. First, the Court has conducted an in camera review of the fifty-two documents submitted by EPA and has once again prepared a table (Table T-3) that contains its findings and conclusions with respect to the individual privilege claims. The Court has also considered GE's argument that EPA has waived privilege claims with respect to approximately 150 documents by failing to raise those claims in prior privilege logs. Still remaining are GE's objections to eleven of the thirteen categories of documents that EPA claims are protected by the deliberative-process privilege, as well as GE's contention that EPA continues improperly to withhold a large number of documents under the work-product doctrine and the attorney-client privilege. In addressing these objections, the Court has proceeded as have the parties - - by evaluating each category of documents allegedly protected by the deliberative-process privilege, and by assessing, to the extent that it can without the actual documents before it, whether the examples of documents referenced by GE have been improperly withheld under the work-product doctrine or the attorney-client privilege. Finally, with respect to those documents or categories of documents that are in fact entitled to the qualified deliberative-process privilege, the Court has determined whether GE's purported need for the documents outweighs EPA's privilege claim.

This procedure has led the Court, after careful consideration of all of the materials submitted, to reach the following conclusions: (1) EPA has waived privilege claims that it failed to raise in the three privilege logs previously submitted during discovery, and will accordingly be ordered to disclose the approximately 150 documents for which it has asserted a privilege for the first time in the October 27, 2006 privilege log; (2) EPA has met its burden of establishing that most of the documents for which it claimed the deliberative-process privilege are in fact covered by that privilege, but must produce some documents for which the privilege claims have been rejected; 3) EPA continues to construe too broadly the protections afforded by the work-product doctrine, and must reevaulate its work-product claims in light of Table T-3 and this Opinion; 4) EPA has properly limited its claims of attorney-client privilege to situations where agency attorneys act in a legal capacity, but must reassess its claims in light of the Court's conclusion, reaffirmed here, that the party asserting the privilege generally must be able to identify recipients and/or provide some indication that the document was prepared for transmission to someone else; and 5) GE's asserted need for the documents does not overcome the qualified deliberative-process protection to which some of the disputed documents are entitled. These conclusions are more fully explained in the ensuing discussion.

ANALYSIS

A. Waiver of Newly Asserted Privileges

GE objects at the outset to EPA's assertion, for the first time in its updated privilege log, of new (or different) privileges as the sole ground for withholding documents as to which the original claims of privilege have been withdrawn in light of the Court's prior rulings. Specifically, EPA has asserted the deliberative-process privilege for more than ninety documents obtained from Department of Justice files and for which EPA had previously invoked only the attorney-client privilege and/or the work-product doctrine. See Oct. 27, 2006 Letter from Brian H. Lynk to Hon. John D. Bates; GE's Objections at 2 & n.2. As EPA candidly admits, it decided to assert the deliberative-process privilege only after the Court rejected its other privilege claims with respect to the documents at issue. GE has also identified approximately sixty additional documents - - a number that EPA does not contest - - for which EPA has now raised either the attorney-client privilege or the work-product doctrine after withdrawing other claims of privilege. See GE's Objections at 2 & n.3. The question before the Court, then, is whether EPA's failure to assert these privilege claims earlier in these proceedings constitutes a waiver of the privilege claims or whether, as EPA argues, its attempt to "conform[] its privilege claims to the principles articulated" by the Court in the September 12 Memorandum Opinion suffices to excuse the tardy assertions. See EPA's Reply at 4.

As this Court has recognized, "[t]he D.C. Circuit follows a 'strict rule on waiver of privileges.'" Bowles v. Nat'l Ass'n of Home Builders, 224 F.R.D. 246, 253 (D.D.C. 2004) (quoting Sec. & Exch. Comm'n v. Lavin, 111 F.3d 921, 929 (D.C. Cir. 1997)). Waiver issues, particularly in the context of the attorney-client privilege, most often arise when a party inadvertently discloses allegedly privileged materials, or when such materials are "involuntarily" disclosed by third-parties over whom the privilege holder has no control. See id. In the former situation, the rule in the D.C. Circuit is clear: even an inadvertent disclosure constitutes a waiver of the attorney-client privilege, and the only remaining question is the scope of that waiver. See In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989); see also Hicks v. Bush, 452 F. Supp. 2d 88, 104 (D.D.C. 2006) (noting that in this circuit "the inadvertent disclosure of attorney-client privileged material constitutes a complete waiver of the privilege"). The same is not true, however, in cases of involuntary disclosure, where courts will find the privilege to have been waived "only when the holder has failed to take reasonable steps to reclaim the protected material." Lavin, 111 F.3d at 930; Bowles, 224 F.R.D. at 253.

Neither of these settled rules applies neatly to GE's waiver argument here, which focuses on EPA's failure to make a timely assertion of privileges. See GE's Objections at 2-3. Rather, GE relies on another waiver rule that has been employed by district courts both inside and outside of this circuit in the distinct context of privilege logs. Under that rule, a party's failure "to assert a privilege on its privilege log or in any of its pleadings" amounts to a waiver of the privilege. See Banks v. Office of the Senate Segeant-at-Arms, 233 F.R.D. 1, 9 (D.D.C. 2005) (citing Carey-Canada, Inc. v. California Union Ins. Co., 118 F.R.D. 242, 248-49 (D.D.C. 1986)); see also In re Honeywell Int'l, Inc. Securities Litigation, 230 F.R.D. 293, 299 (S.D.N.Y. 2003) (discussing the different approaches in the Southern District of New York when a party "fails to assert [a privilege] in a privilege log, but instead asserts a different privilege"). This rule, in turn, is derived from both the requirements imposed by Fed. R. Civ. P. 26(b)(5) and the more general principle that "[f]ailure to assert [a] privilege within a reasonable time, without a showing of good cause, constitutes a waiver of the privilege." Banks, 233 F.R.D. at 9 (citing Blumenthal v. Drudge, 186 F.R.D. 236, 240 (D.D.C. 1999)); see also 6 James Wm. Moore et al., Moore's Federal Practice ¶ 26.90[1] (Matthew Bender 3d. ed.) (explaining that Rule 26(b)(5) "requires the party asserting the privilege or protection to make the claim expressly, and to describe the nature of the information not produced in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection"). A party's failure to assert applicable privileges in a timely fashion, of course, hinders (rather than enhances) its opponent's ability "to assess the applicability of the privilege or protection" at issue. Fed. R. Civ. P. 26(b)(5). Given the possibility that tardy privilege claims will further ensnare parties in discovery battles, courts in this district have treated seriously a party's noncompliance with Rule 26(b)(5) and have been willing to impose the severe sanction of waiver. See Banks, 233 F.R.D. at 9; Carey-Canada, 118 F.R.D. at 249; see also 6 Moore's Federal Practice ¶ 26.90[1] (calling waiver the "most extreme sanction that a court can impose for failure to follow the required procedure," and noting that the appropriate sanction "eschews mechanical application").

As GE sees it, EPA had ample opportunity to assert all applicable privileges in any one of the three privilege logs that it submitted between September 15, 2005 and April 20, 2006. GE insists that, because EPA failed to assert what it now maintains are the correct privileges on three prior occasions, it cannot do so at this late date. See GE's Objections at 3-4. To hold otherwise, the argument goes, would be to overlook a party's obvious efforts to reshape its legal contentions in the wake of an adverse ruling and thus encourage precisely the sort of "gamesmanship" that the waiver rules are designed to avoid. Id. (quoting In re Honeywell Int'l, Inc. Securities Litigation, 230 F.R.D. at 299-300) ("Parties should not be permitted to re-engineer their privilege logs to align their privilege assertions with their legal arguments . . . [because s]uch a practice undermines the very purpose of privilege logs, and promotes the kind of gamesmanship that courts discourage in discovery.").

GE's argument finds strong support in the Banks decision from this district. In that case, the defendant submitted documents for in camera review, along with a privilege log in which it invoked the work-product doctrine with respect to the five documents at issue. 233 F.R.D. at 9. The court determined that the five documents did not qualify as attorney work product and ordered them produced. Faced with that directive, the defendant moved for a protective order, arguing that the documents were protected by the attorney-client privilege, which it had inadvertently failed to assert in the briefing and the privilege log. The court accepted the defendant's contention that its failure to assert the privilege earlier had been an inadvertent omission, but still deemed the privilege to have been waived. Relying on a previous case that held that a party had waived a privilege claim by failing to assert it in either of two privilege logs or in any of its pleadings, see Carey-Canada, Inc., 118 F.R.D. at 249, the Banks court concluded that the defendant had waived the attorney-client privilege by waiting to assert it "until after the close of discovery, after it submitted its privilege log and the documents to the court for in camera review, and after the court ordered the documents produced." 233 F.R.D. at 9. In so ruling, the court also necessarily rejected the defendant's contention that there had been no waiver because, "although [the] privilege log only expressly asserted work product protection, the description of the documents on the log indicated that they are attorney-client privileged." Id. In other words, the fact that the description may have sufficed to support a privilege claim did not excuse the party's failure to assert that claim in a timely manner.

That same reasoning applies with equal force here. EPA's fresh privilege claims follow on the heels of a legal ruling rejecting the other bases for withholding the requested documents. This smacks of an attempt by EPA to get a second bite at the apple by "re-engineering" its privilege log to advance legal arguments that it failed to make at earlier stages of the litigation. See In re Honeywell Int'l, Inc. Securities Litigation, 230 F.R.D. at 299-300. The Banks court refused to tolerate this kind of delay (even if it was inadvertent), concluding instead that the defendant had failed to assert its privilege claims "within a reasonable time." 233 F.R.D. at 9. Here, as in Banks, EPA failed to assert the privilege claims at issue until after it had submitted three prior privilege logs and ninety-nine documents for in camera review by the Court, and until after the Court had conducted that review and issued a lengthy ruling partially resolving the dispute. See id.; see also Carey-Canada, 118 F.R.D. at 249 (deeming a privilege claim waived where the party had failed to raise it in two prior privilege logs and any of its pleadings). A delay of this sort - - where EPA seeks to use its fourth privilege log as a charm for resisting disclosure - - hardly evinces the "reasonable" or "justifiable" course of conduct that might excuse a party's failure to make a timely assertion of all privilege claims. See Banks, 233 F.R.D. at 9; 6 Moore's Federal Practice ¶ 26.90[1].

EPA does not attempt to distinguish Banks. It instead offers an array of justifications, all of which boil down to the dual arguments that it "acted reasonably and in good faith" in response to this Court's order and that addressing the merits of the Agency's new privilege claims would not materially prejudice GE. See EPA's Reply at 3-4. These arguments, neither of which addresses "good cause" for the failure to assert privilege claims in a timely manner, are ultimately unpersuasive. For one thing, EPA's contention that it "acted reasonably" appears to rest on a misinterpretation of the instructions set forth in the Court's September 12 Memorandum Opinion. Seizing on one sentence in that opinion, EPA represents that it responded to the Court's order by producing approximately 1,850 documents in full or in part and also by "remed[ying] a limited number of inconsistencies and omissions in its privilege claims." EPA's Reply at 1. It is true that the Court directed EPA to "review all of the documents on the updated privilege log . . . and then create a final privilege log that includes only that documents that, in light of the principles set forth [in the Memorandum Opinion], EPA now maintains are properly withheld." 2006 WL 2616187, at *21 (emphasis added). That sentence makes sense, however, only when read in the context of the Court's instruction, just one sentence earlier, that EPA "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." Id. This language does not demonstrate any intention to allow EPA to "remedy . . . omissions in its privilege claims." EPA's Reply at 1. To the contrary, the Court made abundantly clear that in "updating" its privilege log, EPA was to "produce" all documents that did not qualify for the protections that EPA had asserted at that time. See 2006 WL 2616187, at *21. EPA's misinterpretation of these instructions loses sight of the forest through the trees and fails to account for the fact that the Court was ruling on a motion to compel production of documents. The Court crafted its opinion so as to facilitate the production of non-privileged documents, not to serve as a roadmap for EPA to continue to resist disclosure, this time on different grounds.

Furthermore, the supposed reasonableness of EPA's actions is sharply undercut by its candid (and repeated) admission that it added the new claims of deliberative-process privilege only after the Court had rejected its other grounds for withholding certain documents. See Oct. 27, 2006 Letter from Brian H. Lynk to Hon. John D. Bates; EPA's Reply at 3. It may well be true, as EPA contends, that its failure to assert all of the applicable privileges earlier was no more than an omission, due in large part to the "extraordinary demands imposed by discovery in this matter." EPA Reply at 2. Discovery in this case has indeed been extraordinary, having placed onerous burdens on both parties, as well as on the Court. For that reason, if EPA had, for example, mistakenly omitted privilege claims for a few documents from its initial privilege log and later sought to correct its mistake, the Court would likely have declined to find waiver. But that is decidedly not the posture of this case. Here, EPA's tardy privilege claims, made as they were in direct response to the Court's September 12 Memorandum Opinion, tend toward the kind of "gamesmanship" that courts seek to discourage in the discovery context. See In re Honeywell Int'l, Inc. Securities Litigation, 230 F.R.D. at 299-300. The Court did not order a "do over"; it did not instruct EPA to start from the beginning and correct any prior mistakes. Rather, it directed EPA to produce the documents that it should have produced earlier, and to provide additional submissions to demonstrate that EPA was entitled to withhold the documents that it was still withholding. Nothing in the Memorandum Opinion or the accompanying order gave EPA the additional bite at the privilege apple that it now seeks to defend as "reasonable." While EPA may well be operating in good faith, and the Court does not intimate otherwise, its actions are not reasonable under the circumstances.

EPA's contention that its tardy invocation of the privileges has not "prejudiced" GE likewise misses the mark. According to EPA, the overriding purpose of the procedural requirements imposed by Fed. R. Civ. P. 26(b)(5) is to provide a party with "a fair opportunity to challenge" another party's privilege claims. See EPA's Reply at 2. Because the privilege claims added since the Court's Memorandum Opinion are similar to EPA's earlier claims and consistent with that opinion, EPA insists, the lateness of the new claims will not materially prejudice either "GE's ability to challenge EPA's privilege claims or [] the Court's ability to rule on that challenge." Id. at 4. EPA has once again failed to consider the big picture - - namely, the ability of litigants and the Court efficiently to address the thousands of privilege claims that EPA asserts. Thus, even if EPA is correct as to the purpose of Rule 26(b)(5), the requested "no prejudice" conclusion does not follow. That much is clear from the parties' squabbling over one document - - P.L. No. 626. See GE's Objections at 4; EPA's Reply at 4. GE points out that P.L. No. 626 is described in a fashion virtually identical to P.L. No. 625, a document that the Court already determined was not protected by the deliberative-process privilege. Relying exclusively on the brief descriptions available to it, GE posits that P.L. No. 626 is similar to P.L. No. 625 and that EPA's recent invocation of the attorney-client privilege for the former document must be simply another attempt to avoid disclosing it. EPA, which of course has access to the actual documents, corrects that apparently inaccurate impression by assuring GE and the Court that the two neighboring documents are similar in description only, that P.L. No. 625 has already been produced, and that the assertion of a new privilege as to P.L. No. 626 was just a result of EPA's thorough reevaluation of its privilege claims. See EPA's Reply at 4.

This back-and-forth suffices to demonstrate one concrete way in which GE has been prejudiced. Specifically, GE has had to spend at least some portion of the relatively short time between receiving EPA's new submissions and the deadline imposed by this Court sifting through the 297-page privilege log to identify the documents for which EPA is claiming a new or different privilege and determining, as best it can given the information disparity, whether these new claims comport with the Court's Memorandum Opinion and the applicable law. This task was all the more difficult because EPA's October 27th letter informed GE and the Court only that EPA was asserting new privileges. The letter, unlike the twenty-eight-page chart that EPA submitted with its April 20, 2006 privilege log, did not specify either the quantity or identity of the documents affected by those claims. See Def.'s Opp'n to Pl.'s Motion to Compel, Exh. 3 (dkt. # 109). Only with the aid of GE's timely filed objections has the Court been able to identify the affected documents for purposes of its analysis. See GE's Objections at 2 & nn.2-3. Hence, if nothing else, EPA's tardy privilege assertions have forced GE to expend its limited time and resources to challenge claims that could - - and should - - have been made almost a year and a half ago. The Court therefore concludes that EPA's assertion of new privileges for the first time in its fourth privilege log has prejudiced GE. This prejudice, together with EPA's inadequate justifications for failing to assert valuable privileges within a reasonable time (i.e., an absence of good cause), convinces the Court that the sanction of waiver, although undoubtedly harsh, is appropriate in this case. Accordingly, EPA will be ordered to produce the approximately 150 documents for which it has asserted a new or different claim of privilege in response to the Court's September 12 Memorandum Opinion.

B. Deliberative-Process Privilege

The primary focus of the parties' briefing is on EPA's assertion (or re-assertion) of the deliberative-process privilege with respect to over 800 documents. In support of its privilege claims, EPA has submitted an updated declaration from Granta Y. Nakayama, Assistant Administrator for the Office of Enforcement and Compliance Assurance; a declaration from Alan J. Steinberg, the Regional Administrator for Region 2, pertaining to one document only; and a separate privilege log that provides paragraph-long descriptions of each of the documents for which EPA has claimed the privilege. In his Declaration, Nakayama divides 793 of the documents into thirteen categories of ten or more documents, with a fourteenth category consisting of twenty-six miscellaneous documents. Nakayama Decl. ¶ 11. The Declaration further indicates that lower-level attorneys reviewed each document in compiling the privilege log, and then Nakayama personally reviewed a representative sample of forty-eight documents, including at least one in each of the thirteen categories (but apparently none of the uncategorized documents). Id. ¶ 5. The Court, as part of its in camera review of fifty-two documents (see Table T-3 infra), has evaluated three documents from category eight, two documents from category four, and one document each from categories seven, nine, eleven, and twelve. That is to say, the Court has reviewed at least one document in six of the thirteen categories.

GE objects to various aspects of EPA's response to the Court's September 12 Memorandum Opinion. As a threshold matter, GE objects generally to the methodology employed by EPA, and specifically to the fact that, despite the Court's observation that the deliberative-process inquiry is document-specific, the agency official asserting the privilege reviewed only forty-eight of the more than 800 documents at issue. GE's Objections at 5. To the extent that GE challenges the adequacy of the Nakayama Declaration on the ground that Nakayama did not personally review all of the 800-plus documents, the Court agrees with EPA that such an objection is meritless. Under the law of this circuit, invocation of the deliberative-process privilege "requires a formal claim of privilege by the head of the department with control over the information. That formal claim must include a description of the documents involved, a statement by the department head that she has reviewed the documents involved, and an assessment of the consequences of disclosure of the information." Northrop Corp. v. McDonnell Douglas Corp., 751 F.2d 395, 405 n.11 (D.C. Cir. 1984). Subsequent case law makes clear, however, that these requirements are not as rigid as they may have once appeared. For instance, the D.C. Circuit has recognized that common-law executive privileges, including the deliberative-process privilege, may be asserted by high-ranking officials other than the agency head. See Landry v. Fed. Deposit Ins. Corp., 204 F.3d 1125, 1135-36 (D.C. Cir. 2000). Moreover, the high-ranking official who asserts the privilege need not have reviewed every document for which the agency has claimed an executive privilege. See Founding Church of Scientology, Inc. v. Director, F.B.I., 104 F.R.D. 459, 465 (D.D.C. 1985). Requiring the agency official to review all "deliberative process material generated at the working attorney staff level or by mid-level managers or administrators," as another court has usefully explained, "would be an unwarranted imposition on the time of [such officials], who need to be free to devote their time to major policy issues and the management of their departments and agencies." Id.*fn1 Accordingly, the fact that Nakayama did not personally review every document for which EPA has asserted the deliberative-process privilege does not, in and of itself, preclude EPA from making those privilege claims.

But the Nakayama Declaration is also, in GE's view, flawed in other respects. For one thing, GE asserts that the Declaration exhibits the same vices that the Court identified in EPA's previous round of declarations: reliance on conclusory statements and legal "buzz words" to carry the agency's burden of demonstrating that the documents or communications are predecisional and deliberative in nature and have not been adopted, either formally or informally, as the agency's policy or position in its dealings with the public. See Mem. Op., 2006 WL 2616187, at *8-*10. In addition to this generalized objection, GE maintains that EPA has failed to carry its burden with respect to 11 of the 13 categories of documents identified, and also with respect to the group of uncategorized documents (for which the Nakayama Declaration provides neither a description nor an indication that Mr. Nakayama ever reviewed any sample).

Guided by GE's category-by-category objections and EPA's category-by-category rebuttal, the Court too will structure its analysis around the categories set forth in the Nakayama Declaration, bypassing categories two and nine because GE does not object to them. Some preliminary comments about the Court's approach to all of GE's objections are, however, in order. Throughout its brief, GE essentially identifies alleged legal errors in EPA's assertion of the protection at issue (whether deliberative-process, attorney-client, or work-product), and then lists illustrative privilege log entries that exhibit the alleged error. GE chooses those examples based on the only information to which it is privy: the brief descriptions in EPA's revised privilege log. What the Court cannot do, however, is make individualized rulings on each of the cited examples solely on the strength of those descriptions. It was precisely to avoid the need for individual review of thousands of documents, of course, that the Court (1) requested a representative sampling of documents agreed to by the parties, and (2) conducted two rounds of in camera review of over 150 documents. The Court simply cannot duplicate the individualized, document-intensive conclusions found in Tables T-1 and T-3 without the documents.

For that reason, a different plan of attack is warranted. That plan will consist of the Court's addressing the alleged legal errors raised by GE in light of EPA's responses, Table T-3 infra, the September 12 Memorandum Opinion (including Table T-1), and governing case law. When the Court finds merit to an objection, it will require EPA to produce the documents identified by GE as illustrative of a particular deficiency, and also to conduct a good-faith review of its privilege log to determine which other documents exhibit the same deficiency and to produce those documents as well. Enforcement of this procedure will undoubtedly depend in large part on EPA's good faith. If the number of meritorious objections were very high, and if EPA had not demonstrated an ability to interpret accurately this Court's previous privilege determinations, those concerns might counsel against adopting this approach. But the relative ease of EPA's task in comparison with earlier stages of discovery - - as well as the Court's willingness to impose sanctions where warranted, which it reiterates at this time - - suggests that placing compliance in the hands of the parties, where that task normally resides, carries few risks here. ...


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