United Affiliates Corporation v. United States

In the United States Court of Federal Claims

No. 17-67 L

Filed: June 21, 2021

)

UNITED AFFILIATES CORPORATION and )

MINGO LOGAN COAL LLC, )

)

Plaintiffs, )

)

v. )

)

THE UNITED STATES, )

)

Defendant. )

)

Kevin P. Holewinski, Jones Day, Washington, D.C., for Plaintiff United Affiliates Corporation.

Daniella A. Einik, of counsel.

Robert M. Rolfe, Hunton & Williams LLP, Richmond, VA, for Plaintiff Mingo Logan Coal LLC.

George P. Sibley, III, of counsel.

Joshua P. Wilson, U.S. Department of Justice, Environment and Natural Resources Division,

Natural Resources Section, Washington, D.C., with whom were Jean E. Williams, Deputy

Assistant Attorney General, Lucinda Bach, Hannah O’Keefe, and Erika Norman, of counsel, for

the Defendant.

OPINION AND ORDER

MEYERS, Judge.

Plaintiffs object to the Government’s assertion of various privileges in response to their

written discovery requests. First, Plaintiffs seek wholesale revision of an undefined set of the

Government’s privilege logs based on alleged deficiencies. Because Plaintiffs’ motion is either

moot or unripe, the Court will not order the Government to revise its privilege logs again until

Plaintiffs identify which log entries they object to, the basis for each objection, and confer with

the Government about those challenged entries. Second, Plaintiffs argue that the Government

cannot assert the deliberative process privilege because of the nature of Plaintiffs’ claim. This

argument, based on other Circuit precedent, is not viable under the Federal Circuit’s precedent.

Finally, Plaintiffs argue that the Government’s assertion of the deliberative process privilege, if

allowed, fails to meet procedural and substantive requirements and has been waived. Because

the Government’s assertion of the privilege does not satisfy procedural requirements, the Court

will require it to produce new declarations asserting the privilege properly. The Government has

not waived the privilege.

I. BACKGROUND 1

Following an approximately ten-year application process and an extensive environmental

impact study, the Government granted Plaintiffs a permit in 2007 pursuant to the Clean Water

Act that allowed Plaintiffs to conduct mining and disposal operations at a site in West Virginia

known as Spruce No. 1. By 2011, however, the Government’s view of coal mining shifted. As a

result, the Government revoked Plaintiffs’ permit, which was necessary for them to operate at

Spruce No. 1. This lawsuit followed.

It did not take long for discovery disputes to arise. Plaintiffs filed a motion to compel the

production of documents outside the administrative record of the Government’s revocation of the

permit. United Affiliates Corp. v. United States, 147 Fed. Cl. 412, 415-16 (2020). The Court

granted-in-part Plaintiffs’ first motion to compel and ordered the production of documents

outside the administrative record and a privilege log within 30 days. Id. at 420-21. The Court

also found that Plaintiffs could challenge privilege claims after receiving the Government’s

privilege log. Id. at 421.

Today’s dispute focuses on those privilege claims, which include claims of attorney-

client privilege, the work product doctrine, and the deliberative process privilege. In June 2020,

Plaintiffs sent the Government a letter objecting to the alleged lack of required information in its

privilege logs. ECF No. 80 at 6. 2 For these deficiencies, Plaintiffs provided the Government

with examples of log entries that they believed to be deficient, but Plaintiffs never provided a list

of all the log entries they objected to. Plaintiffs also claimed that the official that asserted the

deliberative process privilege was not the appropriate official to assert the privilege over certain

documents. Id. While the Government did not agree, it acknowledged that there were issues

with the privilege logs resulting from the accelerated schedule and a glitch in the way the

Government’s review platform generated its logs. There was no dispute that the Government

needed to amend its logs and it agreed to do so. See id. The Government expected the corrected

privilege logs would take three weeks to generate and produce. Id. at 6-7.

Roughly two weeks later, Plaintiffs filed their second motion to compel. ECF Nos.

69-70. As expected, the Government produced its corrected privilege logs the following week

and believed these logs resolved Plaintiffs’ objections. ECF No. 71 at 1 ¶ 2; ECF No. 80 at 12;

ECF No. 80-6 at 2-3. The Court then granted a joint motion to amend the schedule so the Parties

could confer and determine what objections, if any, remained. See ECF No. 72. Rather than

withdraw their motion, Plaintiffs filed a supplemental memorandum, ECF No. 75, raising the

same arguments as before but with new exemplars of the alleged deficiencies. 3 It does not

appear that Plaintiffs ever raised these specific log entries with the Government prior to their

1

Because this opinion deals with a discovery dispute and the facts of this matter are presented at

length in the Court’s prior decisions, see 143 Fed. Cl. 257 (2019) & 147 Fed. Cl. 412 (2020), the

background included here is that relevant to the resolution of the pending motion.

2

Citations to docket items cite to the page numbers in the ECF Header.

3

This case was transferred to the undersigned shortly after the Parties finished briefing the

second motion to compel.

2

supplemental briefing. The Government has since revised its privilege logs to address these

newly identified log entries as well.

After the Court heard argument on Plaintiffs’ second motion, the Government called the

Court’s attention to the Supreme Court’s decision in United States Fish & Wildlife Service v.

Sierra Club, Inc., 141 S. Ct. 777 (2021). ECF No. 91 at 1. To allow the Parties the chance to

address what impact, if any, Sierra Club has on their arguments regarding the deliberative

process privilege, the Court allowed supplemental briefing.

II. Plaintiffs’ objections to the Government’s privilege logs are partially moot and the

remainder are not yet ripe.

A few words on the history of the privilege log disputes in this matter are warranted

before reaching the merits of Plaintiffs’ arguments. Rather than proceeding in an orderly

fashion, these disputes have progressed like a never-ending game of Whac-a-Mole. Given the

Government’s willingness to continue addressing Plaintiffs’ objections without Court

intervention, it is hard to understand how the meet-and-confer process would not have resolved

many, if not all, of Plaintiffs’ objections. See RCFC 37(a)(1). But three things are clear. First,

the Government has been and remains willing to resolve Plaintiffs’ objections to its log entries.

Second, there is a strong likelihood that Plaintiffs will soon file a third motion to compel.

Finally, there will not be a fourth.

The party withholding documents from discovery must deliver a privilege log that

describes each withheld document and contains sufficient information to “enable” the remaining

parties and the Court to “assess the [privilege] claim.” RCFC 26(b)(5); see also Deseret Mgmt.

Corp. v. United States, 76 Fed. Cl. 88, 91 (2007). Plaintiffs argue that many of the

Government’s privilege log entries do not comply with RCFC 26(b)(5) because there is

insufficient information to assess the Government’s privilege claims. See generally ECF No. 75

at 14-19. For its part, the Government has acknowledged and corrected errors in the log entries

Plaintiffs specifically identified. But the Government rejects the notion that it must make

wholesale revisions to an undefined set of log entries within its revised privilege logs because its

entries generally comply with RCFC 26(b)(5).

The crux of the problem here is that Plaintiffs object to broad categories of deficiencies

and provided only exemplar log entries to the Government. See ECF No. 75 at 14-19; see also

ECF No. 70 at 15-19. When Plaintiffs have provided exemplars, the Government has addressed

them relatively quickly. But then Plaintiffs provided new exemplars that they said needed

correction, and the Government has fixed them also. In fact, for every specific log entry

Plaintiffs identified in their briefing thus far, the Government has already addressed the

deficiencies. Hearing Tr. 23:2-9, 41:17-25. As to the objections to these log entries, Plaintiffs’

motion is moot.

But Plaintiffs have never provided the Government a set of objections that identifies each

log entry that Plaintiffs challenge. To the extent Plaintiffs challenge other log entries, those

objections are not yet ripe. Reasonable minds may differ as to whether Plaintiffs object to a

given log entry. Indeed, this Court has not been able to determine with any degree of confidence

what specific log entries Plaintiffs object to, so it cannot fault the Government for the same

3

inability. Even Plaintiffs are unable to state which or how many log entries they object to.

Hearing Tr. 25:6-10. But Plaintiffs acknowledge that they “can go back . . . and do that work” to

identify the entries they object to. Id.

While Plaintiffs may want to avoid the cost and effort this work requires, there is no other

viable option. Among the Court, Plaintiffs, and the Government, Plaintiffs are the ones best

suited to figure out what they object to. It is certainly not the Court’s responsibility to determine

what Plaintiffs object to. See, e.g., Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL

906220, at *1 n.1 (M.D.N.C. Mar. 7, 2014) (“A party should not expect a court to do the work

that it elected not to do.”). Although it is true that the Government must provide sufficient

information for Plaintiffs and the Court to determine whether the privilege applies, RCFC

26(b)(5), it is not incumbent on the Government to guess which log entries Plaintiffs object to.

And the Government does not know. Hearing Tr. 45:24-46:5. Nor is it incumbent on the

Government to prophylactically defend each of the entries on its privilege logs because Plaintiffs

might object to them. Finally, putting the burden on the Government to figure out what log

entries Plaintiffs challenge will only continue the Whac-a-Mole discovery that will only grow

more frustrating as the rounds of briefing pile up.

The Government also objected to Plaintiffs’ supplemental memorandum because it raised

new exemplars of allegedly deficient log entries that Plaintiffs had never conferred with the

Government about before filing their supplemental memorandum. See ECF No. 80 at 6-7; RCFC

37(a)(1). Before the hearing, the Government had addressed each of the alleged defects in these

new exemplars as well. It appears beyond dispute that the Court’s intervention could have been

avoided as to these already resolved log entries and (presumably) many more objections. To

prevent this discovery-by-Whac-a-Mole from continuing, the Court will not entertain further

discovery motions until the Parties have conferred on any objections to specific items (e.g., log

entries) and reached an impasse.

If they reach an actual impasse, the Parties shall file a joint status report of no more than

four pages, signed by each counsel of record, that identifies the issues in dispute and explains in

detail the Parties’ efforts to resolve these disputes. Such efforts shall consist primarily of real

time communications, either in person or by video or teleconference. Letters and emails may be

necessary, but they will not be sufficient. In the joint status report, each side shall have no more

than two pages, double-spaced, to briefly explain its position. Upon receipt of such a joint status

report, the Court will schedule a conference at which it will address the need for further briefing.

And the Court may resolve the dispute in the conference without further briefing.

III. The Government may assert the deliberative process privilege in Penn Central cases.

Plaintiffs next argue that the deliberative process privilege does not apply to this case at

all and the Court should order the Government to turn over any documents it is withholding

based on that privilege alone. The deliberative process privilege is a type of executive privilege

that protects the internal deliberations of the executive branch to ensure that its consideration of

issues is not hindered by the fear of negative publicity. See Sierra Club, 141 S. Ct. at 785.

According to Plaintiffs, the privilege is not applicable here because the Government’s

intent is purportedly central to their taking claim under the character of the governmental action

4

prong of Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). ECF No.

75 at 35-39. In Penn Central, the Supreme Court set forth the factors for courts to evaluate when

determining whether a regulatory prohibition of certain uses of property constitutes a taking of

that property compensable under the Fifth Amendment. Among these factors is the character of

the Government’s action—i.e., an evaluation of the purpose behind the Government’s action.

See Penn Central, 438 U.S. at 123-25. The resolution of this issue requires the Court to

determine whether the D.C. Circuit’s In re Subpoena Duces Tecum Served on Office of

Comptroller of Currency, 145 F.3d 1422 (D.C. Cir. 1998) or the Federal Circuit’s Zenith Radio

Corp. v. United States, 764 F.2d 1577 (Fed. Cir. 1985) provides the proper framework.

Plaintiffs rely heavily on In re Subpoena to argue that the Government may not assert the

privilege when its intent is central to Plaintiffs’ claim. Plaintiffs contend that Penn Central

requires the Court to analyze the “character” of the Government’s action. ECF No. 75 at 38; see

also Rose Acre Farms, Inc. v. United States, 559 F.3d 1260, 1267 (Fed. Cir. 2009) (citing Penn

Cent., 438 U.S. 104). According to Plaintiffs, the character prong requires the Court to assess

“the purpose and reasoning behind” the Government’s action. ECF No. 75 at 36. And because

they contend that “purpose” and “intent” are interchangeable under the law, Plaintiffs argue the

Government’s intent is central to their claim. Id. at 37 n.16. In short, Plaintiffs want discovery

into the internal deliberations of the U.S. Environmental Protection Agency (the “EPA” or

“Agency”) leading up to the “unprecedented” 4 revocation of Plaintiffs’ permit. See id. at 38;

ECF No. 81 at 15. The Government rejects Plaintiffs’ argument and asserts that the traditional

standards of Zenith Radio govern Plaintiffs’ ability to overcome the privilege. ECF No. 80 at 34-

35. The Government notes that the Federal Circuit has not adopted In re Subpoena, id. at 32;

Plaintiffs characterize Zenith Radio as “inapplicable.” ECF No. 81 at 16.

The broad sweep of Plaintiffs’ argument is easily dispensed with. First, the D.C. Circuit

itself limited the scope of In re Subpoena to cases “in which the cause of action is directed at the

agency’s subjective motivation.” In re Subpoena Duces Tecum Served on Off. of Comptroller of

Currency, 156 F3d 1279, 1280 (D.C. Cir. 1998) (emphasis added) (on petition for rehearing).

But Plaintiffs are not arguing that the Government’s subjective intent is relevant, much less

central to, their claims. Hearing Tr. at 118:12-22 (explaining that Plaintiffs are not seeking the

subjective intent of the Government through their discovery requests).

Second, as the Government recognizes, the Federal Circuit has held that “a party seeking

information ‘must make a strong showing of need’ to breach executive privilege . . . .” ECF No.

80 at 40 (quoting In re United States, 678 F. App’x 981, 989 (Fed. Cir. 2017) (quoting Zenith

Radio, 764 F.2d at 1580)). In re United States involved the assertion of the deliberative process

privilege in a Penn Central case. See In re United States, 678 F. App’x at 985-86. Given the

Federal Circuit’s invocation of Zenith Radio as controlling in a Penn Central case, the notion

that Zenith Radio is “inapplicable” to any Penn Central claim is without merit.

4

The Government contends that its regulatory action here was not unprecedented and it has

revoked these same permits in the past. See Hearing Tr. 146:7-11 (alleging that the EPA has

revoked the same type of license at least twice before this case). That issue is for another day.

5

True, In re United States is not a precedential opinion and not binding on this Court. But

the Circuit could not have been any clearer. In re United States deals with the trial court’s

granting a motion to compel the production of documents over the Government’s assertion of

deliberative process privilege in a Penn Central case. While the Circuit agreed with most of the

trial court’s decision, the Circuit found the privilege to clearly apply to certain documents. See

In re United States, 678 F. App’x at 988-92. In fact, the Circuit found the privilege’s application

under traditional principles, including Zenith Radio, to be so clear that it granted a writ of

mandamus to prevent the disclosure of these privileged documents. Id. Given that a writ of

mandamus is only issued when there is a clear legal duty to apply the privilege, the Circuit made

abundantly clear that this Court is to address vitiating the deliberative process privilege in Penn

Central cases under the traditional approach of Zenith Radio.

While the Parties dispute whether Plaintiffs have established the strong need for

documents and whether that need outweighs the harm to the Government from disclosure, they

have done so only in the aggregate. The Court cannot resolve this dispute at this point without

knowing the specific documents Plaintiffs assert should be produced and the Government’s

objections to producing the specific documents. See In re United States, 678 F. App’x at 987

(illustrating the analysis is on a document-by-document basis). Because the Government will be

amending its assertions of the privilege, any challenge is better made once the amended

declarations are produced and the Parties have conferred. This decision does not foreclose

Plaintiffs from seeking to compel production of specific documents under Zenith Radio.

IV. The Government’s assertions of deliberative process privilege fail to meet

procedural requirements.

The final issue for consideration is whether the Government complied with the

procedural and substantive requirements to invoke the deliberative process privilege. Because

the Government failed to meet certain procedural requirements when asserting the privilege, the

Government will need to provide revised declarations that comply with the procedural

requirements addressed below. See Dairyland Power Co-op. v. United States, 77 Fed. Cl. 330,

340 (2007) (“[P]rocedural shortcomings . . . are not sufficient to invalidate the Government’s

claim of privilege.”). Therefore, the Court does not reach the question of whether the

Government’s assertions of the privilege comply with substantive requirements.

A. Deliberative Process Privilege

“[D]esigned to promote frank and candid deliberations among executive agencies[,]”

First Heights Bank, FSB v. United States, 46 Fed. Cl. 312, 320 (2000) (citing NLRB v. Sears,

Roebuck & Co., 421 U.S. 132, 150-51 (1975)), the deliberative process privilege “protect[s]

agencies from being forced to operate in a fishbowl[.]” Sierra Club, 141 S. Ct. 785 (internal

quotation marks omitted) (quoting EPA v. Mink, 410 U.S. 73, 87 (1973)). 5 “The privilege is

rooted in ‘the obvious realization that officials will not communicate candidly among themselves

if each remark is a potential item of discovery and front page news[.]’” Id. (quoting Dep’t of

5

Although the Supreme Court issued Sierra Club after the hearing on Plaintiffs’ motion, the

Parties submitted supplemental briefing on its application to their arguments.

6

Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8-9 (2001)); see also Kaiser

Aluminum & Chem. Corp. v. United States, 141 Ct. Cl. 38, 49 (1958).

As a type of executive privilege, the deliberative process privilege shields “documents

reflecting advisory opinions, recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated.” Sierra Club, 141 S. Ct. at 785

(internal quotation marks omitted) (quoting Sears, 421 U.S. at 150). In other words, the

privilege “protects from disclosure documents generated during an agency’s deliberations about

a policy, as opposed to documents that embody or explain a policy that the agency adopts.” Id.

at 783. However, documents containing investigative information or facts without revealing the

Government’s decision-making processes are discoverable and not protected under the

deliberative process privilege. Confidential Informant 59-05071 v. United States, 108 Fed. Cl.

121, 131 (2012) (collecting cases). “Like all evidentiary privileges that derogate a court’s

inherent power to compel the production of relevant evidence, the deliberative process privilege

is narrowly construed.” Pac. Gas & Elec. Co. v. United States (“Pac. Gas I”), 70 Fed. Cl. 128,

133, modified on reconsideration, 71 Fed. Cl. 205 (2006) (quoting Greenpeace v. Nat’l Marine

Fisheries Serv., 198 F.R.D. 540, 543 (W.D. Wash. 2000)). Establishing the deliberative process

privilege requires the following steps.

a) Procedural Requirements

The Government has the burden to prove that the deliberative process privilege applies to

any withheld or redacted documents and must satisfy three procedural requirements. See

Confidential Informant 59-05071, 108 Fed. Cl. at 131 (citing Walsky Constr. Co. v. United

States, 20 Cl. Ct. 317, 320 (1990)). These requirements are:

First, to invoke the privilege, the government must assert the

privilege by declaration or affidavit. [Walsky, 20 Cl. Ct.] at 320

n.3. The privilege can be asserted by the head of the agency with

control over the requested document, after personal consideration,

or by one to whom such authority to invoke the deliberative

process privilege on the agency’s behalf has been delegated. See

Marriott Int’l Resorts L.P. v. United States [], 437 F.3d 1302, 1308

(Fed. Cir. 2006) (holding that assertion of the privilege can be

delegated); cf. Walsky, 20 Cl. Ct. at 320 (discussing process of

assertion). Second, the officer invoking the privilege “must state

with particularity what information is subject to the privilege.”

Walsky, 20 Cl. Ct. at 320; see also RCFC 26(b)(5) (“When a party

withholds information otherwise discoverable by claiming that the

information is privileged . . . , the party must . . . describe the

nature of the documents . . . not produced or disclosed—and do so

in a manner that . . . will enable other parties to assess the

claim.”)[.] Finally, “the agency must supply the court with precise

and certain reasons for maintaining the confidentiality of the

requested document.” Walsky, 20 Cl. Ct. at 320 (internal quotation

marks omitted).

7

Confidential Informant 59-05071, 108 Fed. Cl. at 131 (ellipses in original) (alterations in

brackets).

b) Substantive Requirements

Additionally, the Government must meet two substantive requirements by demonstrating

that the withheld documents are both (1) predecisional and (2) deliberative. Confidential

Informant 59-05071, 108 Fed. Cl. at 131. “Documents are ‘predecisional’ if they were generated

before the agency’s final decision on the matter, and they are ‘deliberative’ if they were prepared

to help the agency formulate its position.” Sierra Club, 141 S. Ct. at 786; see also Confidential

Informant 59-05071, 108 Fed. Cl. at 131-32.

c) Balancing Test

“To encourage candor, which improves agency decisionmaking, the privilege blunts the

chilling effect that accompanies the prospect of disclosure.” Sierra Club, 141 S. Ct. at 785. But,

as a qualified form of executive privilege, the deliberative process privilege may “be overcome

upon a showing of evidentiary need weighed against the harm that may result from disclosure.”

Confidential Informant 59-05071, 108 Fed. Cl. at 132 (quoting CACI Field Servs., Inc. v. United

States, 12 Cl. Ct. 680, 687 (1987)); see also First Heights Bank, 46 Fed. Cl. at 320 (noting that

the deliberative process “privilege is not absolute”). If the Government meets the deliberative

process privilege’s procedural and substantive requirements, then the Court balances the Parties’

competing interests and ascertains whether Plaintiffs have made “a strong showing of need in

order to breach the privilege.” Zenith Radio, 764 F.2d at 1580; see also Confidential Informant

59-05071, 108 Fed. Cl. at 132 (“After the government has shown that both the procedural and

substantive requirements of the deliberative process privilege have been met, the court must

balance the competing interests of the parties to determine whether the plaintiff has overcome the

privilege by a showing of compelling need.” (citing Marriott, 437 F.3d at 1307)). The balancing

test is comprised of five factors, which are:

(i) the relevance of the evidence sought to be protected; (ii) the

availability of other evidence; (iii) the “seriousness” of the

litigation and the issues involved; (iv) the role of the government

in the litigation; and (v) the possibility of future timidity by

government employees who will be forced to recognize that their

secrets are violable.

Dairyland Power, 77 Fed. Cl. at 342 (quoting In re Subpoena Served Upon Comptroller of

Currency, 967 F.2d 630, 634 (D.C. Cir. 1992)).

B. The EPA’s Region III Administrator did not review a representative sample

of documents to assert the privilege.

For this matter, EPA’s former Region III Administrator, Mr. Cosmo Servidio, was the

official asserting the privilege under a delegation of authority to do so. See ECF No. 75 at 19-25.

The Parties agree that if there is a large group of documents potentially subject to the privilege,

the Government official asserting the privilege may review a representative sample of documents

8

and assert the privilege based on those documents. Plaintiffs argue that there was an inadequate

sampling here because: (1) this was not an “extreme case” with enough documents to justify

using a representative sample; (2) nineteen documents do not make a sufficient representative

sample; and (3) the EPA’s Region III Administrator “appear[ed] to rely on a briefing from EPA

personnel with direct involvement” in the litigation, ECF No. 75 at 24-25, and who categorized

the documents for the delegate’s review. ECF No. 81 at 11-12.

1. A representative sample was appropriate for the universe of Region III

documents claimed under the deliberative process privilege.

Under the EPA’s guidance for asserting the privilege, the delegate asserting privilege

may review a “representative sample” of documents in “extreme cases” in which the “case[]

involv[es] an extraordinarily large amount of material.” ECF No. 75-5 at 7. Plaintiffs contend

that this case is not extreme enough to justify the review of a representative sample. ECF No. 75

at 23; ECF No. 75-5 at 7. Because of the “broad and burdensome discovery requests,” the

Government contends that the Region III Administrator “appropriately relied upon a sample

reflecting the several categories of deliberative, predecisional materials covered by the

privilege . . . .” ECF No. 80 at 23; ECF No. 75-2 at 3-8 ¶¶ 2-12.

In General Electric Co. v. Johnson, No. CIV.A. 00-2855(JDB), 2007 WL 433095

(D.D.C. Feb. 5, 2007), the district court found the EPA’s assertion of the deliberative process

privilege was not precluded just because the Assistant Administrator “did not personally review

every document . . . .” Id. at *7. General Electric dealt with the EPA claiming privilege over

approximately 800 documents based on the delegate’s review of 48 documents. Id. Other courts

have also approved of the use of representative samples in cases involving fewer documents.

E.g., Scalia v. Int’l Longshore & Warehouse Union, 336 F.R.D. 603, 609-11 (N.D. Cal. 2020)

(representative sample appropriate to claim privilege over 121 documents); United States v.

Pechiney Plastics Packaging, Inc., No. 09-5692 (PGS), 2013 WL 1163514, at *19 (D.N.J. Mar.

19, 2013) (representative sample appropriate to claim privilege over 156 documents). Here, the

Government is asserting privilege over roughly 4,000 documents. ECF 88-1 at 2-3 ¶ 4. Given

the significant burden of reviewing and asserting privilege over 4,000 documents, the review of a

representative sample is appropriate.

2. The EPA’s Region III Administrator’s review of nineteen documents out

of approximately four thousand was insufficient for evaluating deliberative

process privilege claims with a representative sample.

Just because the Government may rely on a representative sample to assert the privilege,

it does not mean the chosen sample is sufficient. The EPA’s review of 19 documents of the over

4,000 documents it is asserting privilege over is not a representative sample sufficient to support

the assertion of privilege.

Neither party provided the Court with a method to determine what constitutes a sufficient

representative sample for the deliberative process privilege. The Government argues its sample

is sufficient, Hearing Tr. 97:4-100:18, while Plaintiffs argue that they would “not be offended” if

the delegate reviewed between six and eight percent of the documents he or she is asserting

9

privilege over, id. at 76:14-78:12. While there is no rule stating what constitutes a sufficient

sample, cases provide useful guidance. In General Electric, the district court found that an EPA

Assistant Administrator reviewed a sufficient representative sample when he personally

reviewed 48 out of over 800 documents he was asserting privilege over. Gen. Elec., 2007 WL

433095, at *7. Similarly, another court approved of a delegate’s review of 63 documents from

1,776 documents the Government was asserting privilege over. Bonner v. U.S. Dep’t of State,

928 F.2d 1148, 1151 (D.C. Cir. 1991). While the Court could survey many more decisions, it

appears that courts generally accept a personal review of between 4%-6% of the documents by

the agency delegate asserting privilege. The Government did not cite to any case where less than

½ of one percent constituted a sufficient representative sample.

The Court need not resolve the specific number of documents the EPA Delegates must

review to assert the privilege at this time. Suffice it to say that the Government will need to base

any assertion of privilege on a statistically meaningful sample. Gen. Elec. I, 2006 WL 2616187,

at *1 (requiring “defendants . . . to utilize a statistically-reliable method to generate a

[representative] sample of approximately 100 documents”); see also id. at *3 (describing method

used to generate sample). The Court will convene a discovery conference in approximately two

weeks in which it and the Parties will address this issue further before the review process begins.

3. EPA personnel may categorize documents for the appropriate agency

delegate.

Plaintiffs also object to the fact that the Region III Administrator did not personally

categorize the documents he reviewed, instead others created four broad categories and put each

of the over 4,000 documents into one or more categories. The Court does not see anything

objectionable in the process that led to the categorization of documents into broad groups by

subject matter, which was done to ensure that the delegate would review sample documents from

each type (albeit the samples were too small). As explained below, it appears that the EPA’s

categorization will aid ensuring that the proper EPA official reviews a representative sample of

documents when asserting the privilege. But to the extent the EPA delegates wish to assert

privilege over categories of documents, the delegates will need to do so on their own and such

groups will likely need to be more closely drawn to the documents in such categories.

While reviewing documents for responsiveness, attorney reviewers identified documents

that they determined may be privileged. For attorney-work product and attorney-client privilege,

attorneys asserted the privilege. For the deliberative process privilege, the attorney reviewers

flagged documents that they thought may be privileged. After the initial review, Ms. Stefania D.

Shamet, an attorney with Region III, and attorneys with EPA’s Office of General Counsel

reviewed the documents potentially covered by the deliberative process privilege. ECF No. 88-1

at 1, 5-7 ¶¶ 1, 11-12. They then grouped the documents into four categories:

• Category 1—“includes draft documents and communications fully internal to the

EPA, including Region III, the Office of Water, the Office of General Counsel,

the Office of Enforcement and Compliance Assurance (OECA), and the Office of

the Administrator. It also includes some interagency communications between

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EPA and the Office of the Assistant Secretary of the Army for Civil Works and

the U.S. Army Corps of Engineers.” ECF No. 88-1 at 7 ¶ 13.

• Category 2—“consists of handwritten notes of Agency staff reflecting

considerations for policy development and potential future Agency decision

points for policy actions, including consideration of action on proposals by Arch

Coal and Mingo Logan Coal LLC.” ECF No. 88-1 at 9 ¶ 15.

• Category 3—“includes drafts and communications among Agency staff and

management regarding communications to certain external parties, including

members of the public, stakeholders, representatives of the press, Members of

Congress and their staff, and state government officials.” ECF No. 88-1 at 9 ¶ 16.

• Category 4—“includes communications among Agency staff and management in

connection with the process of publishing Pond, et al. 2008.” ECF No. 88-1 at

9-10 ¶ 18.

In total, the EPA asserts the deliberative process privilege over “approximately 4,024”

documents. ECF No. 88-1 at 4 ¶ 4. Categories 1 and 3 make up the overwhelming majority of

the documents. Category 2 consists of 26 documents, ECF No. 80-1 at 87, and Category 4

consists of 11 documents, id. at 106. The remainder of documents are Categories 1 and 3, with

most of these in Category 1. See id. at 15-85 (listing Category 1 documents) & 89-108 (listing

Category 3 documents). Some documents are included in more than one category.

Insofar as the EPA’s categories inform the collection of a representative sample, they are

likely to add efficiency to the process. Based on these categories, it appears likely that a proper

review would include all the Categories 2 and 4 documents because of the limited volume of

documents. Handwritten notes (Category 2) are likely to require greater scrutiny and these 26

documents merit individual review. Similarly, given the apparently close relationship between

Category 4 documents and the reason for the Government’s action that is at the center of

Plaintiffs’ claim, individual review of those 11 documents is warranted as well. Given the

volume of documents in Categories 1 and 3, the Government may review representative samples

of each.

To be clear, the Court sees these categories as broad subject-matter groupings that will

help ensure that the Agency reviews a proper sampling of documents from each group. These

categories are likely not sufficiently narrow to allow the Agency delegates to assert privilege

over them by referring only to these four groups. That is, if the delegates wish to group

documents into categories for the assertion of privilege in their affidavits, those categories will

need to be identified by the delegate and assert privilege over groups of related documents

identified by Bates number. Here too, the Court and the Parties can address the specifics during

the discovery conference to ensure that everyone is on the same page before the review begins.

C. The EPA’s Region III Administrator is not an appropriate delegate for

documents never shared with Region III.

Plaintiffs argue that the then-Region III Administrator was not an appropriate agency

delegate to assert the privilege over documents that the EPA’s Headquarters office never shared

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with Region III. ECF No. 75 at 22. To be clear, Plaintiffs do not challenge the Region III

Administrator’s ability to assert the privilege over documents originating outside Region III that

other offices shared with Region III personnel. See Hearing Tr. 110:1-111:8. Thus, the universe

of documents Plaintiffs object to the Region III Administrator asserting privilege over is limited.

As of the hearing, the most precise estimate of the number of documents not shared with Region

III over which the Region III Administrator is asserting privilege is “a very small universe of

documents . . . .” Hearing Tr. 104:7.

Generally, deliberative process privilege claims are supported by an adequate declaration

from the appropriate agency official or delegate who: (1) possesses “control over the requested

information” and makes a “formal claim of privilege”; (2) asserts the privilege “based on actual

personal consideration”; and (3) specifies with detail “the information for which the privilege is

claimed, with an explanation why it properly falls within the scope of the privilege.” U.S. Dep’t

of the Treasury v. Pension Benefit Guar. Corp., 222 F. Supp. 3d 38, 43 (D.D.C. 2016). An

appropriate agency delegate may assert the deliberative process privilege on the EPA

Administrator’s behalf. Marriott, 437 F.3d at 1308 (“[T]his court concludes that the head of an

[a]gency can, when carefully undertaken, delegate authority to invoke the deliberative process

privilege on the [a]gency’s behalf.”). Plaintiffs insist that the Government failed to follow the

Federal Circuit’s precedent in Marriott and the EPA’s guidance documents. ECF No. 75 at 22.

In Marriott, the Federal Circuit held that an agency head could properly delegate

authority to invoke the deliberative process privilege to a “subordinate” who was “a high ranking

[a]gency official with expertise in the nature of the privilege claim and documents at issue[,]”

and “not directly responsible for or involved in [the same] substantive [] litigation[.]” Marriott,

437 F.3d at 1308; cf. Landry v. FDIC, 204 F.3d 1125, 1136 (D.C. Cir. 2000) (holding that the

“head of the appropriate regional division . . . is of sufficient rank” to assert the deliberative

process privilege). The dispute here hinges on whether the EPA’s Region III Administrator can

invoke the privilege over documents that were never shared with Region III personnel. Plaintiffs

insist the Region III Administrator lacks “expertise in the nature of the privilege claim and

documents at issue.” ECF No. 75 at 21-22 (emphasis added) (quoting Marriott, 437 F.3d at

1308); see also ECF No. 81 at 13. The Government disagrees because the Region III

Administrator has the needed “expertise” because of the Region III Administrator’s “substantial

role” in the relevant regulatory process. ECF No. 80 at 26 (citing 40 C.F.R. §§ 231.4, 231.5).

This dispute is resolved by the EPA’s delegation itself. The EPA’s 1984 delegation,

which Plaintiffs rely upon, addresses this very issue:

In general, the head of the office responsible for developing the

document or material in question should assert the privilege on

EPA’s behalf where appropriate. Thus, if a litigant makes a

discovery request at a regional office seeking production of

matters which originated with a Headquarters program office, the

decision to assert the privilege should probably be made by the

head of that Headquarters program office.

ECF No. 75-5 at 5-6 (emphasis added). The Government, however, points to the 2016 re-

delegation that includes only the requirement that the agency delegate get the concurrence of the

General Counsel before asserting the privilege. ECF No. 80-1 at 13. But the 2016 delegation

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does not provide the “detailed criteria for invoking the privilege” that Marriott requires.

Marriott, 437 F.3d at 1308. Nor does it purport to. Instead, it refers the agency personnel to the

1984 delegation for guidance on asserting the privilege. ECF No. 80-1 at 13. Given the 2016

delegation’s invocation of the 1984 delegation for guidance on asserting the privilege, the 1984

delegation supplies the Agency’s standards for asserting the privilege.

The Government’s argument that the guidance does not speak in absolutes and, therefore,

the Region III Administrator is the appropriate delegate to assert privilege over all documents

ignores the fact that the delegation assumes that the appropriate official in the office that

generated the documents is the one that will assert the privilege. It is not apparent this case is

anything but a “general” case in which the head of the organization creating the document should

assert the privilege. And there is nothing that limits the Government to producing only one

affidavit asserting the privilege.

Furthermore, it is not clear from the record how many documents are at issue here. The

Government contends that most documents that the Region III Administrator asserted the

deliberative process privilege over either originated in Region III or were shared with Region III

personnel. But there is “a very small universe of documents” that were never shared with

anyone in Region III. Hearing Tr. 103:15-104:11. For this small universe of documents, the

appropriate official in the office that generated them will need to assert the privilege over those

documents. But because there is no clarity as to the number of documents that the EPA’s

Headquarters office never shared with Region III, it is not clear at this point whether a

representative sample would be appropriate for this group of documents. In advance of the

discovery conference, the Parties will need to identify these documents and be prepared to

discuss whether the use of a representative sample is justified for these documents.

V. CONCLUSION

For the foregoing reasons, the Court:

1. Denies in part Plaintiffs’ motion to compel insofar as it seeks updated privilege logs

without Plaintiffs first identifying what log entries they object to;

2. Denies in part Plaintiffs’ motion to compel insofar as it seeks to preclude all assertions

of the deliberative process privilege;

3. Grants in part Plaintiffs’ motion to compel insofar as it seeks one or more compliant

deliberative process declarations; and

4. Will schedule a discovery conference in two weeks to schedule the remaining

discovery in this matter.

IT IS SO ORDERED.

s/ Edward H. Meyers

Edward H. Meyers

Judge

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