# Chevron U.S.A., Inc. v. United States

> United States Court of Federal Claims · August 28, 2008 · 83 Fed. Cl. 313

URL: https://www.frixlaw.com/law-library/cases/6658258

## Case

- **Full name:** CHEVRON U.S.A., INC. v. United States
- **Court:** United States Court of Federal Claims
- **Decided:** August 28, 2008
- **Citations:** 83 Fed. Cl. 313; 2008 U.S. Claims LEXIS 239; 2008 WL 4061067
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Braden
- **Judges:** Braden
- **Cited by:** 3 later opinions in the Frix Law Library

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## Opinion text

*314 MEMORANDUM OPINION AND FINAL ORDER DENYING CERTIFICATION.
BRADEN, Judge.
Congress authorized federal trial courts to certify orders for interlocutory appellate appeal, but only in “exceptional cases[,] while generally retaining for the federal courts a firm final judgment rule.” Caterpillar, Inc. v. Lewis, 519 U.S. 61, 74 , 117 S.Ct. 467 , 136 L.Ed.2d 437 (1996). The Defendant (“Government”) fairly points out that, in several telephone conferences with the parties, the court indicated an interest in certifying certain questions regarding the scope of the deliberative process, attorney-client, and attorney work-produet privileges that arose during in camera review. The three questions posited by the Government, however, are not the same as those the court had in mind and, more importantly, do not satisfy the requirements of 28 U.S.C. § 1292 (d)(2). Nor is this case so “exceptional” as to require setting aside the final judgment rule. For these reasons, the court has determined that the Government’s April 16, 2008 Motion To Certify The Court’s January 31, 2008 Privilege Rulings For Interlocutory Appeal must be denied. 1
I. BACKGROUND AND RELEVANT PROCEDURAL HISTORY. 2
On January 31, 2008, the court issued a Memorandum Opinion and Orders in Chevron II, ruling on the Government’s assertions of attorney-client, attorney work-product, and deliberative process privilege. Therein, the parties also were requested to advise the court, on or before March 18, 2008, whether they intended to request certification of any of those rulings.
On February 13, 2008, the court convened a telephone status conference, wherein the parties agreed to stay further proceedings in this case, until the privilege assertions were resolved.
On March 13, 2008, the Government filed a Status Report and Motion requesting until April 8, 2008 to ascertain the views of the Solicitor General regarding certification of the privilege rulings in Chevron II. On March 17, 2008, Plaintiff (“Chevron”) filed a Response, arguing that the Government did not provide an adequate justification for the requested extension. On that date, the Government filed a request for additional time that the court granted. On March 18, 2008, Chevron notified the court that it did not intend to seek certification of the court’s January 31, 2008 privilege rulings.
On March 28, 2008, the Government made a strategic decision to change course and filed a Notice of Appeal in the United States Court of Appeals for the Federal Circuit of the court’s January 31, 2008 Memorandum Opinion and Orders. On March 31, 2008, however, the Clerk of the United States Court of Appeals for the Federal Circuit determined that the Government’s appeal was “ineffective” and “deactivated,” because the Government’s February 13, 2008 Motion for Reconsideration was still pending in the United States Court of Federal Claims. See Order, Chevron U.S.A., Inc. v. United States, No. 08-5061 (Fed.Cir. Mar. 31, 2008). 3
On April 4, 2008, the court issued a Memorandum Opinion and Order determining that, in light of the Government’s March 28, 2008 *315 Motion to Appeal, the Government’s March 18, 2008 request for additional time to consider certification was moot. In addition, the Government was ordered to produce the documents, as directed by the court’s January 31, 2008 privilege rulings. A schedule for briefing on the Government’s February 13, 2008 Motion for Reconsideration also was set.
On April 16, 2008, the Government filed a Motion To Certify The Court’s January 31, 2008 Privilege Rulings For Interlocutory Appeal And To Stay The Court’s April 4, 2008 Order Pending Appeal (“Gov’t IR Mot.”). On April 25, 2008, Plaintiff filed a Response (“PL IR Opp’n”). On May 2, 2008, the Government filed a Reply (“Gov’t IR Reply”).
On July 7, 2008, the Government filed a Motion For Leave to File December 18, 1987 Order Filed In United States v. Ken Mar Assocs. Ltd., 697 F.Supp. 400 (W.D.Okla. 1987) (Order Re: Sanctions). The court granted that motion on July 8, 2008.
On July 16, 2008, the Government filed a Motion To Unseal The Court’s January 31, 2008 Final Privilege Orders (“Gov’t Mot. to Unseal”), because: “We are not aware of any basis upon which the orders might be withheld from the general public.” Gov’t Mot. to Unseal at 1. The only reason the court initially placed these orders under seal was at the request of the Government. See 12/20/07 TR at 10. Therefore, the court hereby places the three January 31, 2008 Orders in the public record and attaches them as an Appendix to this Memorandum Opinion and Final Order to “facilitate the process of appellate review.” Gov’t Mot. to Unseal at 1.
II. THE STANDARD FOR CERTIFICATION.
Congress authorized the United States Court of Federal Claims to seek interlocutory appellate review of an order, where: “The [trial] court determined that this ques- ... The court further determined that there was a substantial ground for difference of opinion regarding its jurisdiction over [Plaintiffs] claim and that an immediate appeal on the issue would ‘materially advance the ultimate termination of the litigation.’ ” Vereda, Ltda. v. United States, 271 F.3d 1367, 1373-74 (Fed.Cir.2001) (citing 28 U.S.C. § 1292 (d)(2)). 4 Subsequently, the United States Court of Appeals for the Federal Circuit has held that all three elements must be met. See Pause Tech. LLC v. TiVo Inc., 401 F.3d 1290, 1293 (Fed.Cir.2005) (certification should be applied strictly to preserve the final judgment rule that “serves the important purpose of promoting efficient judicial administration” (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 , 101 S.Ct. 669 , 66 L.Ed.2d 571 (1981) (“We have recently defined this limited class of final ‘collateral orders’ in these terms: ‘[The] order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.’ ”) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978)))).
III. DISCUSSION OF THE QUESTIONS PRESENTED FOR CERTIFICATION.
The Government has posited three questions for interlocutory review:
1. Whether the “crime/fraud” exception to the attorney-client privilege applies[,] where the conduct that serves as the basis for its application is an alleged breach of contract?
2. Whether the work-product privilege applies to factual material prepared in anticipation of litigation?
*316 3. Whether the deliberative process privilege protects against the disclosure of factual material in draft decisions?
Gov’t IR Mot. at 3.
Each of these substantive questions are discussed herein, in the specific context of the three required elements of certification. See Pause Tech., 401 F.3d at 1293 .
A. Whether The Questions Posited Are “Controlling Questions Of Law.”
1. Whether The “Crime/Fraud Exception” To The Attorney-Client Privilege Applies, Where The Conduct That Serves As The Basis For Its Application Is An Alleged Breach Of Contract.
The first question that the Government contends should be certified is “whether the crime/fraud exception to the attorney-client privilege applies where the conduct that serves as the basis for its application is an alleged breach of contract.” Gov’t IR Mot. at 3. The court, however, held that the “misconduct exception,” not the “crime/fraud exception,” to the attorney-client privilege was the basis for the court’s determination that certain specific documents should be produced. See Chevron II, 80 Fed.Cl. at 364. Therefore, the court has restated the question as: “Whether the ‘misconduct exception’ to the attorney-client privilege applies where the ‘unlawful act’ is an alleged breach of contract and/or violation of an Administrative Order.” 5
a. The Government’s Argument.
The Government argues that each of the three questions posited are “controlling questions of law,” because the documents that the Government asserts are privileged “bear directly on the material issues in this matter.” Gov’t IR Mot. at 6 (discussing Marriott Int’l Resorts, L.P. v. United States, 63 Fed.Cl. 144, 145 (2004) (where a trial court observed that a procedural question can materially affect the outcome of litigation), rev’d on other grounds, 437 F.3d 1302 (Fed.Cir.2006)). In other words, since the court’s rulings concern a question of law regarding the general applicability of certain privilege doctrines, the Government concludes that such rulings ipso facto are “controlling questions of law.” Id. After making this broad assertion, however, the Government declined to address the specific issue of whether the “misconduct exception” to the attorney-client privilege applies where the “unlawful act” at issue is an alleged breach of contract and/or violation of an Administrative Order. Id. at 5-6.
b. The Plaintiffs Response.
Chevron responds that a question of law is “controlling,” for purposes of certification, if the question materially affects the remaining issues to be decided by the trial court. See Pl. IR Opp’n at 3 (citing Brown v. United States, 3 Cl.Ct. 409, 411 (1983) (“Questions of law have only been deemed ‘controlling,’ under [ 28 U.S.C. § 1292 (d) ] if they materially affect issues remaining to be decided in the trial court.”) (emphasis in original)). The routine production of “documents that may be used along with all of the other evidence in the litigation” does not elevate the merits of that production to a “controlling question” of law. Id. at 4 (emphasis added). Chevron concludes that “[t]he [G]overnment makes no effort to connect its three abstract legal principles to the [C]ourt’s actual rulings on any of the documents at issue.” Id.
c. The Court’s Resolution.
The United States Court of Appeals for the D.C. Circuit has held that “Communications otherwise protected by the attorney-client privilege are not protected if the communications are made in furtherance of a crime, fraud, or other misconduct.” In re Sealed Case, 754 F.2d 395, 399 (D.C.Cir.1985) (emphasis added). As the court observed in Chevron II, the United States Court of Appeals for the D.C. Circuit in In re Sealed Case, 107 F.3d 46 (D.C.Cir.1997), a different case where the crime/fraud exception was invoked, did not undermine the prior extension of that exception to misconduct and clarified that “the client must have made or *317 received the otherwise privileged communication with the intent to further an unlawful or fraudulent act.” Chevron II, 80 Fed.Cl. at 363 at (quoting In re Sealed Case, 107 F.3d at 49 ) (emphasis added).
In this ease, the “misconduct” or “unlawful acts” at issue are prohibited ex parte communications that allegedly constitute a breach of an essential term in a Government contract, as well as an alleged violation of an Administrative Order. Id. After reading over 3,726 pages of documents that the Government asserts are privileged, it would be disingenuous for the court not to disclose that it has reached an initial view that DOE’s conduct certainly appears to have breached the May 17, 1997 Equity Process Agreement and July 8, 1996 Administrative Order, although the court has not yet concluded, as Chevron asserts, that the Government’s conduct amounts to “systematic and egregious ex parte communications between advocates and decisionmakers, and impermissible and undisclosed dual roles in the decisionmaking process, not merely in violation of [the May 19, 1997 Equity Process Agreement], but in repeated violation[s] of [the July 8, 1996][A]dministrative [0]rder, fundamental principles of fairness, and basic canons of legal ethics.” PI. IR Opp’n at 4. A final determination will be made after trial and hearing the Government’s explanations and defenses.
The United States Court of Appeals for the Federal Circuit has followed the United States Court of Appeals for the D.C. Circuit and at least four other federal appellate courts in recognizing the crime-fraud exception to the attorney-client privilege. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 806-07 (Fed.Cir.2000). Whether the United States Court of Appeals for the Federal Circuit also may recognize a “misconduct exception” to the attorney-client privilege and the parameters of that exception are important legal issues, but not “controlling questions” in this ease. Although the misconduct documents are highly relevant, cumulative, and evidence prohibited ex parte communications that appear to breach the terms of the May 19, 1997 Equity Process Agreement and violate the July 8, 1996 Administrative Order, they are not the only evidence that may establish liability. See, e.g., Chevron II, 80 Fed.Cl. at 360 n. 20. 6 Therefore, the court is unable to represent that interlocutory review will “materially affect” this litigation, certainly not at this juncture before discovery is complete. Accordingly, the court has determined that the first question presented by the Government is not a controlling question of law. See Brown, 3 Cl.Ct. at 411 .
2. Whether The Attorney Work-Product Privilege Applies To Factual Material, Prepared In Anticipation Of Litigation.
a. The Government’s Argument.
Again, the Government elected not to address specifically whether the attorney *318 work-product privilege applies to factual material, prepared in anticipation of litigation, is a controlling question of law, but instead has rested on the general argument that, because the Government has asserted certain documents are privileged, ipso facto they “bear directly on the material issues in this matter.” Gov’t IR Mot. at 6. Instead, the Government argues that the court’s statement that “factual information is not subject to the attorney work-product privilege, because facts by definition have no attorney work-product content,” is incorrect. Id. at 10 (citing Chevron II, 80 Fed.Cl. at 366); see also Gov’t. IR Reply at 6.
b. The Plaintiffs Response.
Chevron responds that the Government incorrectly characterized the court’s rulings that factual material was not subject to the attorney work-product privilege, whether such material was prepared “in anticipation of litigation” or not. See PI. IR Opp’n at 5 (citing Gov’t IR Mot. at 3). The court recognized that factual attorney work-product is entitled to less protection than attorney opinion work-product. Id. (citing Chevron II, 80 Fed.Cl. at 365 (ruling that disclosure of factual attorney work-product was appropriate if the factual content did not reveal the work-product component of an attorney effort)).
c. The Court’s Resolution.
The United States Court of Appeals for the Federal Circuit in In re Seagate Tech., LLC, 497 F.3d 1360 (Fed.Cir.2007), held that attorney work-product that is factual may be discovered, if the requesting party makes a showing of “substantial need and undue hardship.” Id. at 1375. Our appellate court also recognized in In re EchoStar Communications Corp., 448 F.3d 1294 (Fed.Cir.2006), that the practical “line between factual work-product and opinion work-product is not always distinct, especially when ... an attorney’s opinion may itself be factual work-product. When faced with the distinction between where that line lies, however, a [trial] court should balance the policies to prevent sword-and-shield litigation tactics with respect to the policy to protect work-product.” Id. at 1302 .
Again, of the 164 folders that the Government asserted were subject to the attorney work-product privilege, the court determined after conducting a line-by-line examination, that 64 folders contained documents not subject to the attorney work-produet privilege, because they were not authored by an attorney and/or contained factual content that did not reveal any attorney mental process, plans, strategies, tactics, or impressions, 7 *319 and for which Chevron demonstrated a “substantial need” and that an “undue hardship” exists. In this case, however, the ultimate disposition of liability is not dependent on the folders at issue. Although they are highly relevant and cumulative evidence of the alleged prohibited ex parte communications, their production and admission is not dispositive of the issue of liability, certainly not at this juncture before discovery is complete. See Chevron II, 80 Fed.Cl. at 360 n. 20. Therefore, interlocutory review will not “materially affect” the disposition of this issue. Accordingly, the second question advanced by the Government is not a controlling question of law. See Brown, 3 Cl.Ct. at 411 .
3. Whether The Deliberative Process Privilege Protects Against The Disclosure Of Factual Material In Draft Documents.
a. The Government’s Arguments.
The Government insists that factual material in draft documents is absolutely subject to the deliberative process privilege. See Gov’t IR Mot. at 9 (“[Sjeveral appellate courts have held that the separation requirement does not apply to factual material contained in drafts.”) (emphasis in original) (citing Lead Indus. Ass’n, Inc. v. OSHA, 610 F.2d 70 , 86 (2d Cir.1979)) (observing that the production of factual material in drafts would allow insight into agency’s internal workings, which “is exactly what the law forbids”); see also Mobil Oil Corp. v. E.P.A., 879 F.2d 698, 703 (9th Cir.1989) (“[T]he deliberative process privilege [applies] to a draft document regardless of whether it differs from its final version.”); Nat’l Wildlife Fed’n v. Forest Serv., 861 F.2d 1114, 1122 (9th Cir.1988) (“Materials that allow the public to reconstruct the predeeisional judgments of the administrator are no less inimical to [the] goal of encouraging uninhibited decisionmaking than materials explicitly revealing his or her mental processes.”); Russell v. Dep’t of the Air Force, 682 F.2d 1045, 1049 (D.C.Cir. 1982) (observing that “a simple comparison between the pages sought and the official document would reveal” an agency decision maker’s judgment); Montrose Chemical Corp. of California v. Train, 491 F.2d 63, 71 (D.C.Cir.1974) (“When a summary of factual material on the public record is prepared by the staff of an agency administrator, for his use in making a complex decision, such a summary is part of the deliberative process[.]”). Again, the Government failed to specifically address whether this question was “controlling.” See Gov’t IR Mot. at 9-10.
b. The Plaintiffs Response.
Chevron responds that the court did not apply a blanket legal rule as to whether the deliberative process privilege protects against the disclosure of factual material in draft documents, but instead inspected and ruled on each document individually and on a line-by-line basis in many eases. See PI. IR Opp’n at 5-6. Therefore, the Government is contending that the court incorrectly should have made these determinations regarding *320 the general applicability of the deliberative process privilege. See Pl. IR Opp’n at 6.
c. The Court’s Resolution.
The January 31, 2008 Final Order Regarding Documents The Government Asserts Are Subject To The Deliberative Process Privilege shows that the court examined the Government’s deliberative process privilege assertions here, as elsewhere, on a line-by-line basis, to ascertain if any factual content could be isolated and disclosed, irrespective of whether the document being reviewed was a draft or final. See Chevron II, 80 Fed.Cl. at 361. 8
The United States Supreme Court held in E.P.A. v. Mink, 410 U.S. 73 , 93 S.Ct. 827 , 35 L.Ed.2d 119 (1973) that “[documents] consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context would generally be available for discovery by private parties in litigation with the Government.” Id. at 88 , 93 S.Ct. 827 (emphasis added). The dispositive adjective in that ruling is “severable.” In Chevron II, the court observed that: “In light of the absolute clarity of applicable precedent, the court considers the Government’s continued assertion that factual content is subject to the deliberative process privilege to border on abuse.” See Chevron II, 80 Fed.Cl. at 361. If factual information is severable, whether in final, draft, or semi-draft form, such text is not subject to the deliberative process privilege—-no ifs, ands or buts. See Mink, 410 U.S. at 88 , 93 S.Ct. 827 . Although Chevron has requested and is entitled to factual material in draft documents, in the court’s judgment, none of the information at issue is dispositive of the liability or damage issues in this case. Therefore, whether the deliberative process privilege protects against disclosure of factual materials in draft documents is not a controlling question of law.
* * *
Since the court has determined that none of the three questions presented are controlling, the Government’s Motion To Certify could be dismissed here. In the interest of fairness, however, the court has analyzed the second and third requirements of certification.
*321 B. Whether The Questions Presented Involve A Substantial Ground For A Difference Of Opinion.
1. As To The “Misconduct Exception” To The Attorney-Client Privilege,
a. The Government’s Argument.
Again, the Government generically argues that there is a substantial ground for difference of opinion regarding each of the three questions presented, because the “[c]ourt’s rulings narrow the scope of the existing attorney-client, work-product, and deliberative process privileges in a novel manner that conflicts with the established authority setting forth the parameters of each privilege.” Gov’t IR Mot. at 7 (emphasis added).
Specifically, the Government argues that any “misconduct exception” to the attorney-client privilege does not apply in breach of contract cases. Id. at 7-8 (citing Chevron II, 80 Fed.Cl. at 363). More importantly, the primary case that the court relied upon, In re Sealed Case, 754 F.2d 395 (D.C.Cir.1985), is a non-preeedential decision that addressed only attorney communications made for the purpose of facilitating an “illegal and fraudulent scheme.” Id. at 8 (citing In re Sealed Case, 754 F.2d at 402 ). In fact, no case holds that a breach of contract that qualifies as “other misconduct” warrants an exception to the attorney-client privilege. Id. The Government does not address whether a violation of an Administrative Order is “other misconduct” qualifying as an exception to the attorney-client privilege.
In addition, the Government disagrees with the court’s application of a “misconduct exception” to documents that only “appear to evidence [improper intra-agency] ex parte communications,” because there is no legal precedent holding that evidence of presumed misconduct invokes the erime/fraud/misconduet exception. Id. Instead, “the communication must have been made with the intent by the client to further a wrongful act.” Id. at 8-9 (emphasis added) (citing In re Sealed Case, 107 F.3d 46, 50 (D.C.Cir.1997) (“Unless the government made some showing that the Company intended to further and did commit a crime, the government could not invoke the crime-fraud exception to the privilege.”)).
b. The Plaintiff’s Response.
Chevron responds that application of the “misconduct exception” to the attorney-client privilege depends on the nature of the misconduct, not the nature of the claim asserted. See Pl. IR Opp’n at 6 (citing Koch v. Specialized Care Servs., Inc., 437 F.Supp.2d 362, 373 (D.Md.2005) (“The determinant of the [crime/fraud/misconduct] exception’s applicability is the wrongfulness of the conduct before the Court, not the form of pleading.”)). In addition, Chevron argues that the Government has cited no legal precedent that suggests any alternate understanding of the crime/fraud/misconduct exception. Id. at 7. In fact, the crime/fraud/misconduct exception has been recognized and applied by the predecessor to the United States Court of Appeals for the Federal Circuit in a breach of contract case. Id. (citing Weiss v. United States, 155 Ct.Cl. 825, 886-87 , 1961 WL 1568 (1961)).
c. The Court’s Resolution.
The United States Court of Appeals for the Federal Circuit has held that a “substantial ground for difference of opinion” is present where two precedential cases indicate different interpretations of law. See Vereda, Ldta., 271 F.3d at 1373-74 . That is not the case here. There is no difference of opinion among the federal appellate courts as to whether there is a “misconduct exception” to the attorney-client privilege; 9 instead there is a dearth of jurisprudence, as the court recognized in Chevron II, 80 Fed.Cl. at 363.
*322 If the court were to find a “substantial ground for disagreement” where there is no controlling precedent on a discovery issue, interlocutory appeal would become the rule, rather than the exception, undermining the established policy of requiring finality before appellate review is ripe. See Caterpillar, 519 U.S. at 74 , 117 S.Ct. 467 (“Routine resort to [28 U.S.C.] § 1292(b) requests would hardly comport with Congress’ design to reserve interlocutory review for exceptional eases while generally retaining for the federal courts a firm final judgment rule.”) (citations and internal quotations omitted).
For these reasons, the court has determined that there is not a substantial ground for a difference of opinion as to whether the “misconduct exception” to the attorney-client privilege applies.
2. As To Attorney Work-Product That Contains Factual Content, But Prepared In Anticipation Of Litigation,
a. The Government’s Argument.
The Government also disagrees with the court’s ruling that “factual information is not subject to the attorney work-produet privilege,” because this ruling conflicts with RCFC 26(b)(3) 10 and the “overarching principles” of the work-product doctrine. See Gov’t IR Mot. at 10 (quoting Chevron II, 80 Fed.Cl. at 363). Accordingly, the Government contends that the court’s January 30, 2008 ruling “greatly diminishes the scope of the [attorney] work-produet privilege and appears to conflict with the Federal Circuit’s application of the privilege[.]” Id. at 11. In addition, the Government asserts that certification is required, because the court’s January 31, 2008 rulings apply not just to the individual documents examined in this ease in camera, but also to the general applicability of the attorney work-produet privilege doctrine. Id. at 11-12.
b. The Plaintiffs Response.
Chevron responds that the court ruled only that specific factual content in the documents at issue were not privileged. See Pl. IR Opp’n at 8-9 (citing Chevron II, 80 Fed.Cl. at 365). The court’s ruling that the documents reviewed were not entitled to the deliberative process privilege was not only based on the documents’ factual content, but other reasons, such as that the information was already in the public domain. Id. at 9 (citing Judicial Watch, Inc. v. DOJ, 432 F.3d 366, 371 (D.C.Cir.2005) (holding that where “any portions” of documents, including “the attachments, included nonprivileged material,]” disclosure of the nonprivileged portions with redaction of the privileged content was appropriate)).
c. The Court’s Resolution.
In light of the detailed guidance provided in In re EchoStar Communications, 448 F.3d at 1301 -04 and In re Seagate Tech., 497 F.3d *323 at 1375, there is no substantial ground for a difference of opinion as to whether attorney work-product privilege applies to factual material, whether or not it was prepared in anticipation of litigation. What is important is the qualitative content at issue. Factual content, whether or not prepared “in anticipation of litigation,” remains factual. Accordingly, the court has determined that there is no substantial ground for a difference of opinion as to whether the attorney work-product privilege applies to factual material. Moreover, since almost all Government action is prepared “in anticipation of litigation,” the intent or purpose for which a Government attorney authors or reviews a document is not relevant to whether the attorney work-product privilege applies. What is relevant is the qualitative content for which the privilege is asserted and whether the party seeking production establishes a “substantial need” and “undue hardship.” In re Seagate Tech., 497 F.3d at 1375 (holding that factual attorney work-product may be discovered upon a showing of “substantial need” and “undue hardship.”).
3. As To Draft Deliberative Documents That Contain Factual Content,
a. The Government’s Argument.
The Government also argues that the court erred in ruling that factual material in certain draft documents was not privileged, even where factual material could be segregated from deliberative material. See Gov’t IR Mot. at 9 (citing Chevron II, 80 Fed.Cl. at 361). The Government points out that several federal appellate courts have held that factual material in draft documents is privileged. Id. (citing Mobil Oil Corp., 879 F.2d at 703 (holding that the application of the deliberative process privilege to a draft document does not hinge on whether the draft differs from the final version); Nat’l Wildlife Fed’n, 861 F.2d at 1122 (“Materials that allow the public to reconstruct the predecisional judgments of the administrator are no less mimical to [the] goal of encouraging uninhibited decisionmaking than materials explicitly revealing his or her mental processes.”); Russell, 682 F.2d at 1049 (observing that “a simple comparison between the pages sought and the official document would reveal” an agency decisionmaker’s judgment); Lead Indus. Ass’n, Inc., 610 F.2d at 86 (observing that the production of factual material in draft documents would allow insight into an agency’s internal workings, which “is exactly what the law forbids”)). Moreover, the Government argues that the main case that the court relied upon does not address draft decisions and that the United States Court of Appeals for the Federal Circuit has yet to consider the issue. See Gov’t IR Mot. at 10 (citing Pac. Gas & Elec. Co. v. United States, 70 Fed.Cl. 128 , 134 n. 7 (2006) (‘Where possible, ‘facts that are separable from the privileged portion of a document should be disclosed.’ ”) (citation omitted)).
b. The Plaintiffs Response.
Chevron responds that whether information is contained in a draft or a final document, the deliberative process privilege applies only where that information is “inextricably intertwined with deliberative content.” Pl. IR Opp’n at 7-8 (citing Wilderness Soc’y v. Dep’t of Interior, 344 F.Supp.2d 1, 14 (D.D.C.2004) (“The District of Columbia Circuit has made clear that simply designating a document as a ‘draft’ does not automatically make it privileged under the deliberative process privilege.”)); see also Exxon Corp. v. Dep’t of Energy, 585 F.Supp. 690, 698 (D.D.C.1983) (“[W]hile purely factual material is not exempt, it must be disclosed only if ‘reasonably segregable’ from privileged material.”) (citation omitted).
c. The Court’s Resolution.
Contrary to the Government’s contention, it is well established that where factual content is severable from deliberative content in final documents, factual content must be produced. See Mink, 410 U.S. at 88 , 93 S.Ct. 827 . Therefore, there is no substantial ground for disagreement about whether such factual content is privileged whether in final or draft deliberative documents.
C. Whether Interlocutory Appeal Will Materially Advance This Litigation.
1. The Government’s Argument.
The Government also argues that interlocutory review of the three above referenced *324 questions will simplify the present litigation and “provide guidance in other cases before the [United States] Court of Federal Claims that raise similar important privilege issues.” Gov’t IR Mot. at 13.
2. The Plaintiff’s Response.
Chevron responds that interlocutory review of the court’s January 30, 2008 rulings regarding allegedly privileged documents would delay, rather than advance, litigation. See PL IR Opp’n at 10-11 (citing Quantum Corp. v. Tandon Corp., 940 F.2d 642, 644 (Fed.Cir.1991) (holding that early appellate resolution of an attorney-client privilege document dispute would not materially advance litigation)); see also Jade Trading, LLC v. United States, 65 Fed.Cl. 443, 448-49 (2005) (appellate resolution of a dispute over the production of confidential third-party tax information would not materially advance the litigation at issue). Because sufficient information exists to pursue this case, regardless of the Government’s protests, interlocutory review would not materially advance this litigation. See Pl. IR Opp’n at 11-12. Even if the court’s privilege rulings were reversed, no retrial would be needed. Id. at 12 (citing Purdue Pharma L.P. v. Endo Pharms. Inc., 438 F.3d 1123 , 1135 (Fed.Cir.2006) (vacating judgment after bench trial and instructing district court on remand to reweigh the evidence)); see also Moncrief v. Williston Basin Interstate Pipeline Co., 174 F.3d 1150, 1155 (10th Cir.1999) (remanding ease for a determination on evidence in the record).
Finally, Chevron disagrees with the Government’s general proposition that Marriott holds that interlocutory review materially advances litigation, whenever litigation is simplified. See Pl. IR Opp’n at 12-13 (citing Marriott, 63 Fed.Cl. at 145-46 ) (observing that resolution of Marriott affected all deliberative process proceedings and that the circuits were split).
3. The Court’s Resolution.
Chevron filed this case on August 24, 2004. From November 19, 2004 to May 31, 2006, the court considered and ruled on the Government’s first and supplemental motions to dismiss, pursuant to RCFC 12(b)(1), (b)(6), after extensive briefing and several oral arguments, occasioned in part by Chevron’s change in counsel.
Following filing of the Government’s June 28, 2006 Answer and entry of an initial August 23, 2006 Protective Order, the Government asserted privilege as to 7,337 folders consisting of over 35,919 pages of documents. See Chevron II, 80 Fed.Cl. at 342. The court has spent the last fifteen months, in addition to attending to other cases on the court’s docket, reviewing and re-reviewing in camera 801 folders consisting of over 3,726 pages of documents, conducting numerous telephone conferences, and entering Memorandum Opinions and preliminary rulings on August 22, 2006; May 21, 2007; May 24, 2007; May 25, 2007; June 5, 2007; June 6, 2007; June 8, 2007; June 11, 2007; June 12, 2007; June 13, 2007; June 15, 2007; June 18, 2007; June 28, 2007; July 2, 2007; July 3, 2007; July 9, 2007; July 10, 2007; and July 12, 2007 to address the Government’s privilege assertions. On January 31, 2008, the court issued a Memorandum Opinion and Final Orders issuing the court’s final rulings on the documents reviewed by the court and asserted to be subject to privilege. On this date, August 28, 2008, the court also has issued a Memorandum Opinion and Final Order Regarding Reconsideration of these decisions.
Production of the privileged documents at issue will be subject to a Protective Order to preserve Chevron’s ability to challenge the court’s evidentiary rulings on appeal to allow deposition discovery to proceed. Until the privileged documents, subject to the court’s January 31, 2008 Memorandum Opinion and Orders, are produced, Chevron cannot conduct meaningful depositions. At the conclusion of such discovery, the court will be in a position to set a briefing schedule on the Government’s August 17, 2007 Motion for Summary Judgment and, if necessary thereafter, set a trial date. In the court’s judgment, this case can be set for trial and liability issues resolved in 2009. Therefore, in the court’s judgment, certification will not materially advance this litigation.
*325 IV. CONCLUSION.
For the reasons stated herein, the Government’s April 16, 2008 Motion to Certify is denied. 11
IT IS SO ORDERED.
COURT APPENDIX TO MEMORANDUM OPINION AND FINAL ORDER DENYING CERTIFICATION
Füed: AugUSt 28, 2008 *
FINAL ORDER REGARDING DOCUMENTS THE GOVERNMENT ASSERTS ARE SUBJECT TO THE ATTORNEY-CLIENT PRIVILEGE.
Documents Withheld Ruling
13 October 20, 1999 fax cover sheet from Butch Gangle to “DOE SOZ Equity Team” copied to Mary Egger, Greg Thorpe, Alan Burzlaff re: “EHEC Minutes—1956 Objection.”
The redacted text of the October 20,1999 cover e-mail does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
14 October 20, 1999 fax cover sheet from Butch Gangle to “DOE SOZ Equity Team,” copied to Mary Egger, Greg Thorpe, Alan Burzlaff re: “SOZ Conversion research” does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). The attachments CBG0030612-22 are factual documents dated 1956 re: gas reserves in NPR # 1 and are not privileged. Id.
27 October 3, 2000 fax cover sheet from Butch Gangle to Mary Egger forwarding a redacted May 19, 1981 letter to Chevron from Barton House, Department of Energy (“DOE”) Acting Assistant Secretary. The May 19, 1981 letter was sent to Chevron, does not request nor convey legal advice and is not subject to the attorney client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
*326 66 October 12, 1999 3:56 p.m. e-mail from Gary Latham to Robert Kripowicz/Mary Egger re: “Gas-oil Conversion.”
The redacted text of the e-mail does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
In addition, the disclosed text references Ms. Egger’s role and potential ex parte communications between Ms. Egger and Mr. Latham, and/or the IPE which are directly relevant to the issues before the court.
262 August 9,1996 cover sheet and draft memo re: Final Elk Hills Equity Recommendations from Robert Nordhaus, DOE General Counsel, to Netherland Sewell (IPE) regarding “legal issues ... regarding the meaning of certain UPC provisions and the role of Netherland Sewell & Associates (NSA) as the Independent Petroleum Engineer[.]” This document was circulated by Mary Egger to J. Williams and Wayne Kaufman for “technical review.”
The cover sheet does not request nor convey legal advice. Likewise the draft memo from Mr. Nordhaus expresses a legal opinion to the IPE, a third party. The document is not subject to attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). Moreover, the header of the document (CGB0050818) describes the functions being performed by Gary Latham at that time (as Contracting Officer’s Representative) which appear to differ from those represented to the court. Compare CBG0050818 with Fygi Deck Exhibit C.
626 March 25,1997 cover sheet from Mary Egger to Owen Olpin, Wayne Kauffman, Ken Schuessler, Alan Burzlaff, and Gary Latham requesting comments on draft letter (CBG0020884) from Mary Egger to “the Equity IPE” re: “Legal Issues for Stevens Zone Equity Finalization.” does not request nor convey legal advice, but rather provides Ms. Egger’s views about legal issues to the Equity IPE, a third party. In fact, the memo refers to the Independent Legal Advisor, evidencing that Ms. Egger was not the attorney for IPE. The draft letter is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). The March 25,1997 cover sheets (CBG0020883, 85-86) are factual and not privileged.
If Mr. Schussler or Mr. Burzlaff functioned as members of the “DOE field equity technical team” this document also may evidence an improper ex parte communication with Ms. Egger.
631 COM00600009 is a fax cover sheet from Greg Thorpe to Mary Egger, Wayne Kauffman, Alan Burzlaff, and Owen Olpin. This document is factual and not subject to the attorney-client privilege. COM00600012-13 is a March 31, 1997 draft of 626 with edits made *327 by Greg Thorpe. The edits made by Greg Thorpe, however, could be construed to convey legal advice and are subject to the attorney-client privilege. COM00600014 is an attachment to the March 31, 1997 draft letter titled “Chevron’s Statement of Potential Legal Issues.” stating Chevron’s position and is not privileged.
634 COM00602479 is an April 1,1997 fax cover sheet from Greg Thorpe to Mary Egger. The cover sheet is factual and not subject to the attorney-client privilege. COM00602481-2 is an April 1, 1997 draft of 626 with handwritten edits by Mr. Thorpe that could be construed to convey legal advice and is subject to the attorney-client privilege. Attachment 1 (COM00602483) is titled “alt 1” “Department of Energy’s Description of Potential Stevens Zone Legal Issues” and Attachment 2 (COM00602484) is titled “Alt 2.” Both documents could be construed to convey legal advice and are subject to the attorney-client privilege.
733 May 12, 1997 cover fax sheet from Greg Thorpe to Mary Egger, Wayne Kaufmann, and Ken Meeks (CBG00100917) is factual and not privileged. The attached draft “Agreement Regarding Fixing Of Equity Interests at Naval Petroleum Reserve No. 1 For Purpose of Sale” (CBG00100918-37) could be construed to request or convey legal advice and is subject to the attorney-client privilege.
782 February 24,1999 fax cover sheet from Alan Burzlaff to Greg Thorpe, Mary Egger, Wayne Kauffman, and Butch Gangle, forwarding transcripts of Stevens Zone June/July 1997 presentations.
The redacted text on the cover sheet provides factual information “pertinent to our current legal issue topic” and could be construed to request legal advice and is subject to the attorney client privilege.
The more relevant issue to this case is whether any of the recipients functioned as members of the “DOE field equity technical team.” If so, the header of the fax cover sheet (CME0102240), which was produced, may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The transcript pages already were provided to Chevron with edits, so any privilege regarding the edits has been waived.
953 May 6,1998 memo from Alan Burzlaff to Wayne Kauffman copied to K.L. Schuessler re: “Stevens Zone Equity Finalization Potential ‘Capture’ Analysis Legal Issue.” Reference “Letter dated April 30, 1998 from Cynthia Giumarra, Chevron USA to Mary Egger, U.S. Department of Energy (DOE).” This technical memo and attachments were requested by Wayne Kauffman and do not request nor convey legal advice and are not subject to the attorney-client privilege, nor do they attain that status simply subsequently by being faxed to Ms. Egger on that same day for a subsequent discussion. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
In addition, if any of the recipients functioned as members of the “DOE field equity technical team” this folder may evidence a prohibited ex parte communication prohibited by the Equity Process Agreement.
*328 954 Same ruling as 953.
968 May 19, 1998 fax cover sheet from Wayne Kauffman to Ms. Egger (CBG0030153) requesting approval for a cover sheet for the “equity reports,” however, the cover sheet was not attached. A May 6,1998 letter from O.J. Williams, Director, Naval Petroleum Reserves of California, to Mr. Don Romine, Occidental (CBG0030154), was attached. This document addressed to Chevron’s predecessor does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
976 The redacted text of a memo “Proposed Joint Instruction Meeting” (CBG0030293) faxed on June 1,1998 at 10:57 from O’Melveny & Myers LLP conveys legal advice and is subject to the attorney-client privilege.
CBG0030295 is another draft of the text of the prior document, re: “Proposed Joint Instructions Wording” faxed on June 1,1998 at 8:19 from Alan Burzlaff to Mary Egger, Greg Thorpe, and Wayne Kauffman, could be construed to request legal advice and is subject to the attorney-client privilege.
The redacted text of the May 29,1998 10:59 fax cover sheet (CBG0030296) forwarding a draft of a letter to Richard Krenek (IPE) from DOE and Chevron re: “Joint Instruction relating to Stevens Zone Equity Finalization” could be construed to convey legal advice and is subject to the attorney-client privilege.
If Wayne Kauffman or Alan Burzlaff functioned as members of the “DOE field equity technical team,” however, the fax cover sheet (CBG0030291) and (CBG0030296), already produced, may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
978 “Technical Issues for Discussion” (CBG0030310) is an attachment to a June 4,1998 letter from Mary Egger to Cynthia Giumarra, Assistant General Counsel, Chevron, is not privileged and should be produced.
E-mail string (CBG0030311-15). The redacted text of the June 4, 1998 12:07 p.m. e-mail from Alan Burzlaff to Mary Egger re: “Proposed Letter to CUSA 6/4/98” (CBG00315) and June 4,1998 11:01 a.m. reply copied to Greg Thorpe, Wayne Kauffman and Ken Schuessler do not request nor convey legal advice and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). The attached draft letter, however, could be construed to request legal advice and is subject to the attorney-client privilege
The redacted text of the June 4,1998 12:13 p.m. e-mail (CBG0030314) from Alan Burzlaff to Mary Egger copied to Ken Schuessler, Greg Thorpe, and Wayne Kauffman re: “Proposed
*329 Letter to CUSA 6/4/98” could be construed to request legal advice and is subject to the attorney-client privilege.
The redacted text of the June 4,1998 12:28 p.m. e-mail (CGB0030312) from Wayne Kauffman to Mary Egger re: “Proposed Letter to CUSA 6/4/98” could be construed to request legal advice and is subject to the attorney-client privilege.
The redacted text of the June 4,1998 2:14 p.m. e-mail (CBG0030311) from Greg Thorpe to Alan Burzlaff, Mary Egger, Ken Schuessler, and Wayne Kauffinan re: “Proposed Letter to CUSA 6/4/98” could be construed to convey legal advice and is subject to the attorney-client privilege.
CBG030317 is a June 4,1998 letter from Mary Egger to Ms. Giumarra (Chevron) copied to Greg Thorpe, Own Olpin, Wayne Kauffinan, and Alan Burzlaff re: “Stevens Zone Equity—For discussion purposes only.” CBG030318 is the same as CBG030317.
E-mail string. (CBG0030319-21) The June 4, 1998 9:58 a.m. email from Wayne Kauffman to Mary Egger re: “Draft letter to CUSA” could be construed to request legal advice and is subject to the attorney-client privilege.
The June 4,1998 10:19 a.m. reply from Mary Egger re: “Draft letter to CUSA” could be construed to convey legal advice and is subject to the attorney-client privilege.
The June 4,1998 12:07 p.m. e-mail from Alan Burzlaff to Mary Egger re: “Proposed letter to CUSA 6/4/98” could be construed to request legal advice and is subject to the attorney-client privilege.
The June 4,1998 10:16 a.m. e-mail from Mary Egger to Alan Burzlaff re: “Proposed Letter to CUSA 6/4/98” could be construed to convey legal advice and is subject to the attorney-client privilege. (CBG0030319)
Draft June 4, 1998 memo with handwritten notes from ABB (Alan Burzlaff) marked June 18,1998 (CBG0030323) could be construed to request legal advice and is subject to the attorney-client privilege.
*330 (CBG003025-27) Draft letter to Ms. Cynthia H. Giumarra (Chevron) re: “Stevens Zone Equity—For discussion purposes only” is the same text as CBG0030317 with handwritten note “Draft—For Review/Comment,” conveys legal advice and is subject to the attorney-client privilege.
(CBG0030329) Edits to CBG0030325 from Greg Thorpe to Mary Egger, Alan Burzlaff, Ken Sehuessler, and Wayne Kauffman re: “Possible Instruction Letter Paragraph (new language in bold)” conveys legal advice and is subject to the attorney-client privilege.
(CBG0030330) is a June 30, 1998 memo from Alan Burzlaff to Mary Egger/Greg Thorpe that requests legal advice and is subject to the attorney-client privilege.
993 January 25,1998 e-mail from Mary Egger to Greg Thorpe re: “Draft Comments.” could be construed to convey legal advice and is subject to the attorney-client privilege.
1000 July 21,1998 e-mail from Wayne Kauffman to Mary Egger copied to Francis Gangle, Jim Murphy, Greg Thorpe, Jay Williams re: “CUSA Proposed Communications Protocol draft.”
In this memo Mr. Kauffman is reporting on the views of the “DOE EFT” about Chevron’s proposed changes to the Protocol. The first three paragraphs do not request nor convey legal advice and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). If Butch Gangle functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
The fourth paragraph arguably could be construed as requesting legal advice, however, the last sentences ‘Wording should ... at this time.” admits there were ex parte communications, the central issue in this case. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this paragraph. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
1025 August 3, 1998 4:11 p.m. e-mail from Alan Burzlaff to Greg Thorpe, Wayne Kauffman, Mary Egger copied to Jim Murphy, Butch Gangle, and Ken Sehuessler re: “Equity Finalization Data Cutoff Dates.”
This document does not request nor convey legal advice, as it reports on cutoff dates reflected in minutes to NSAI meeting where Chevron was in attendance, is factual, and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
1027 Same ruling as 1025.
*331 1057 The redacted text of a September 22,1998 memo from Alan Burzlaff to Wayne Kauffman copied to Mary Egger, Ken Schuessler, Jim Murphy re: “Shallow Oil Zone (SOZ) Final Equity Finalization Proposed Change to Data Cutoff Date.” The document does not request or convey legal advice, as it reports on a September 15,1999 SOZ interim meeting that Alan Burzlaff attended apparently as a member of the “DOE Equity Finalization Team,” and is not subject to the attorney-client privilege. In addition, if any of the above-named functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
Attachment 1 is a document re: “SOZ Equity Finalization Data Cutoff Date,” is a DOE handout used at the “SOZ First Interim Meeting on September 15,1998.” Attachment 2 is a copy of January 9-10, 1996 NSAI Minutes. Attachment 3 is an August 2, 1996 letter from DOE to Norman D. Stone, Equity Manager for Chevron. Attachment 4 is a copy of an August 15, 1996 letter sent by Norman Stone (Chevron) in response to the above referenced August 2,1996 letter. Attachment 5 is a copy of a document “Current WOC Data” which was “Stevens Zone—Chevron Presentation Slide—242 Reservoirs” using data from a June 1997 meeting. Attachment 6 is a Chevron Response to the NSAI Provisional Stevens Zone Recommendations, March 1998. Attachment 7 is page 2 from the May 19, 1997 Agreement Regarding Equity Redetermination Process. Attachment 8 is a May 15, 1997 memo from Gary Latham to the file re: “[May 13, 1997] Discussion with Chevron and NSA (IPE) on process ground rules for SOZ equity finalizations.
None of these attachments request nor convey legal advice and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
1071 1071 to 1077,1079 to 1087, and 1090 are individual pages from 1090, a 20 page presentation prepared by Systems Technology Associates, Inc. re: “Potential Stevens Zone Legal Issue ‘Use of Capture Methodology’—September 30, 1998 Briefing.” Although 1090 contains the caption “Attorney Client Communication-Privileged and Confidential,” the document does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
1072 Same ruling as 1071.
1073 Same ruling as 1071.
1074 Same ruling as 1071.
1075 Same ruling as 1071.
Same ruling as 1071. 1076
*332 1077 Same ruling as 1071.
1079 Same ruling as 1071.
1080 Same ruling as 1071.
1081 Same ruling as 1071.
1082 Same ruling as 1071.
1083 Same ruling as 1071.
1084 Same ruling as 1071.
1085 Same ruling as 1071.
1086 Same ruling as 1071.
1087 Same ruling as 1071.
1090 Same ruling as 1071. Five slides in this presentation arguably could be construed to discuss legal issues regarding the equity finalization process. CME01302117 (“Legal Issue on Use of Capture”); CME01302132 (“What Are Chevron’s Issues”); CME01302134 (‘What are Merits of Chevron’s Legal Arguments”); CME01302135 (“Stevens Zone Legal Issue”); CME01302136 (“NSAI Shale Methodology”). The Government’s log, however, does not represent these slides as being prepared by or presented to an attorney. The attorney-client privilege does not attach.
1108 October 22-23, 1998 e-mail string. The October 22, 1998 6:27 p.m. e-mail from Alan Burzlaff “To all” re: “Revised Equity Data Cutoff Date Proposal” could be construed to request legal advice as it is a “subject data cutoff proposal that incorporates the feedback I received today” and is subject to the attorney-client privilege.
The October 23, 1998 8:55 a.m. memo from Mary Egger to Greg Thorpe, Ken Schuessler, Wayne Kauffman, Alan Burzlaff copied to Butch Gangle and Jim Murphy re: same could be construed to convey legal advice and is subject to the attorney-client privilege.
The October 23,1998 8:32 a.m. e-mail from Ken Schuessler to Mary Egger, Greg Thorpe, Wayne Kauffman, Alan Burzlaff copied to Butch Gangle and Jim Murphy re: “Revised Equity Data Cutoff Date Proposal” could be construed to request legal advice and is subject to the attorney-client privilege.
If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of all the e-mails in folder 1108. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800,807 (Fed.Cir.2000).
1123 October 28-29, 1998 e-mail string. The October 28, 1998 7:58 p.m. e-mail from Alan Burzlaff “to all” re: “DOE Proposed Materiality *333 Question for NSAI” could be construed to request legal advice and is subject to the attorney-client privilege.
The October 29,1998 6:21 a.m. e-mail from Mary Egger to Ken Schuessler, Greg Thorpe, Wayne Kauffman, Alan Burzlaff re: “DOE Proposed Materiality Question for NSAI” conveys legal advice and is subject to the attorney-client privilege.
The October 29, 1998 10:15 a.m. e-mail from Butch Gangle to Mary Egger re: same could be construed to request legal advice and is subject to the attorney-client privilege.
Butch Gangle, Wayne Kauffman, and Ken Schuessler were authorized to represent DOE before the IPE (NSAI). Ms. Egger was not, as she was counsel to the ASFE. This document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of all the e-mails in folder 1123. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
1133 October 13,1997 “Description of NSAI 31S Shale Methodology,” authored by Alan Burzlaff, System Technology Associates, Inc. Although this document is labeled “Privileged Attorney-Client Communication,” it does not request nor convey legal advice as it is a factual description of the “technical approach used by the IPE in competing equity participation in the 31S Shales” and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
1142 November 19, 1998 4:21 a.m. e-mail from Alan Burzlaff to Greg Thorpe re: “Item lWriteup for Stevens Zone Capture Legal Issue” does not request nor convey legal advice as it describes the fact that Mr. Burzlaff prepared a “write-up of item 1 for the subject Capture legal issue.” The “write-up” is not included, therefore the e-mail text alone is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1145 November 23,1998 fax cover sheet from Greg Thorpe and Stephanie Walter to Alan Burzlaff, Butch Gangle, Mary Egger, and Owen Olpin attaching a “redraft of technical review” i.e. November 23, 1998 System Technology Associates’ “Description of the IPE’s 31S Shale Methodology.” The edits on this document convey legal advice and are subject to the attorney-client privilege. An undated version of underlying text, however, is not privileged, as discussed at 1133.
*334 If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1154 December 1,1998 fax cover sheet from Greg Thorpe to Ken Schuessler, Alan Burzlaff, Mary Egger, Owen Olpin, and Wayne Kauffman forwarding “Revised draft of ‘technical’ piece.” The attached document is re-named “Netherland Sewell’s 31S Shale Methodology.” The edits on this document convey legal advice and are subject to the attorney-client privilege. An undated version of underlying text, however, is not privileged, as discussed at 1133. If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1170 December 7, 1998 memo from Butch Gangle to Greg Thorpe and Mary Egger copied to Wayne Kauffman, Alan Burzlaff, Ken Schuessler re: “NSAI EFT Conference Call on December 7, 1998.” does not request nor convey legal advice as it reports on an “Equity Finalization Team teleconference” where Chevron participated and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1237 February 3,1999 7:51 p.m. e-mail from Alan Burzlaff to Mary Egger and Greg Thorpe re: “BTU Legal Issue Internal Briefing” could be construed to request legal advice and is subject to the attorney-client privilege. If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1243 February 16, 1999 memo from Greg Thorpe to Mary Egger, Wayne Kauffman, Butch Gangle, Alan Burzlaff, and Ken Schuessler with cc: to Christine Suh and Owen Olpin re: “Value Weighing.” The memo conveys legal advices and is subject to the attorney-client privilege, however, the attachment “Table Ill-Results of Operations For Oil and Gas Producing Activities” is from the Chevron Corp.1998 Annual Report, is in the public domain, and should be produced, without the notation. If any of the above-named, however, functioned as a member of the “DOE field equity technical team” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1255 March 5-6,1999 e-mail string.
The March 5,1999 4:59 p.m. e-mail from Alan Burzlaff to Mary Egger copied to Butch Gangle, Ken Schuessler, Gary Holcomb, Wayne Kauffman, Greg Thorpe regarding “Chevron’s Data Cutoff Proposal dated March 5,” could be construed to request legal advice and is subject to the attorney-client privilege. Butch Gangle, Wayne Kauffman, and Ken Schuessler were authorized to represent DOE before the IPE (NSAI). Ms. Egger was not, as she was *335 counsel to the ASFE. This document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of all the emails in folder 1255. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
The March 6,1999 e-mail from Ken Sehuessler to Aan Burzlaff regarding “Chevron’s Data Cutoff Proposal dated March 5,” does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
1286 April 15,1999 e-mail string. The redacted text of the April 15,1999 3:30 p.m. e-mail from Aan Burzlaff “To all” does not request nor convey legal advice as it reports the fact that Aan Burzlaff worked on a draft “Technical Report,” but the report itself was not included and therefore the e-mail text is not subject to the attorney-client privilege.
The redacted text of the April 15, 1999 5:21 p.m. e-mail from Mary Egger to Aan Burzlaff re: “Final Draft of Technical repot being Faxed” could be construed to convey legal advice and is subject to the attorney-client privilege.
1294 CME01102353-55 is a April 21, 1999 memo from Aan Burzlaff to Greg Thorpe, Mary Egger, Wayne Kauffman, Butch Gangle, Ken Sehuessler, Owen Olpin, and Christine Suh, re: “Analysis of Chevron’s Equitable Claim.” The redacted text of the April 21,1999 memo arguably could be construed to request legal advice, as it appears to respond to a memo from Greg Thorpe regarding Chevron’s equitable claim.
If any of the above referenced individuals, however, functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. Butch Gangle, Wayne Kauffman, and Ken Sehuessler were authorized to represent DOE before the IPE (NSAI). Ms. Egger was not, as she was counsel to the ASFE. This exchange occurred before the IPE’s Decision on the Stevens Zone and the ASFE’s Preliminary and Final Decisions, in both of which Ms. Egger took a leading role. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of all the documents in folder 1294. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
1312 May 6, 1999 fax cover sheet from Mary Egger to Wayne Kauffman, together with May 6,1999 signed final letter from Mary Egger to C. Kenneth Roberts, Esq. re. “Mediation of Stevens Zone Legal Matters.” The log indicates that Mr. Roberts was the “ILA” and a “client DOE employee.” In fact, Mr. Roberts’ client was Nether-land Sewell, the IPE. Therefore, the May 6,1999 letter is not privileged, nor are Ms. Egger’s edits on Settlement Agreement Number Three since they were disclosed.
*336 1356 September 13,1999 4:44 p.m. e-mail (CAS0021163-64) from Lou Capitanio to Mary Egger re: “New Draft” could be construed to request legal advice and is subject to the attorney-client privilege, but for the text “The 1998 production data ... into 1998.” which is factual, and should be produced.
The September 14, 1999 9:54 a.m. e-mail (CAS0021163) from Mary Egger to Lou Capitanio re: “New Draft” copied to Gary Latham, Arnold Smits, and Robert Kripowicz (ASFE) could be construed to convey legal advice and is subject to the attorney-client privilege.
The redacted text of the September 14,1999 1:50 p.m. e-mail (CAS0021163) from Lou Capitanio to Mary Egger re: “New Draft” copied to Gary Latham, Arnold Smits, and Robert Kripowicz does not request nor convey legal advice as it is a factual report of a “teleconference with the IPE” and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the aforementioned individuals functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
The redacted text of a June 22,1999 11:46 a.m. e-mail (CAS002116122) from Mary Egger to Robert Kripowicz re: “Elk Hills injury lawsuit” is not relevant to this ease.
1372 E-mail string dated July 20,1999.
The redacted text of a July 20, 1999 7:02 a.m. e-mail (CBG003108081) from Butch Gangle to Alan Burzlaff, Ken Schuessler, Gary Holcomb, James Gruber re: “Questions for NSAI on Wednesday” does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
July 20,1999 10:07 a.m. e-mail from Alan Burlaff in response copied to Mary Egger and Greg Thorpe could be construed to request legal advice and is subject to the attorney-client privilege. The redacted text of the July 20, 1999 12:06 p.m. e-mail from Greg Thorpe could be construed to convey legal advice and is subject to the attorney-client privilege.
If any of the aforementioned individuals functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1373 Same ruling as 1372 re: July 20, 1999 7:02 a.m. e-mail and July 20, 1999 1:06 p.m. e-mail.
The redacted text of the July 20,1999 5:58 p.m. e-mail (CDE00304407) from Mary Egger to Butch Gangle, Ken Schuessler, Gary Holcomb, James Gruber, and Alan Burzlaff copied to Greg
*337 Thorpe re: “Questions for NSAI on Wednesday.” could be construed to convey legal advice and is subject to the attorney-client privilege.
If any of the aforementioned individuals functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1384 July 23-26,1999 e-mail string.
The redacted text of the July 23,1999 8:49 a.m. e-mail (CDE00304417-18) from Alan Burzlaff to Greg Thorpe, Christine Suh re: “Comments on Cutoff Date Brief’ coped to Mary Egger, Ken Schuessler, and Butch Gangle could be construed to request legal advice and is subject to the attorney-client privilege.
The redacted text of the July 23,1999 1:23 p.m. reply (CDE00304417) from Greg Thorpe does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the July 23,1999 12:44 p.m. e-mail (CDE00304416-17) from Mary Egger in response could be construed to convey legal advice and is subject to the attorney-client privilege. Ms. Egger’s memo, however, directly discusses the issue in this case, ie., the parties compliance with the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this e-mail. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
The July 25,1999 1:43 p.m. e-mail from Greg Thorpe to Mary Egger, Alan Burzlaff, Christine Suh copied to Ken Schuessler and Butch Gangle could be construed to convey legal advice and is subject to the attorney-client privilege. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this e-mail. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
The redacted text of the July 26, 1999 11:20 a.m. e-mail from Alan Burzlaff to Greg Thorpe could be construed to request legal advice and is subject to the attorney-client privilege.
*338 The July 26, 1999 12:23 p.m. e-mail from Mary Egger in reply could be construed to convey legal advice and is subject to the attorney-client privilege.
If any of the aforementioned individuals functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1390 July 29, 1999 cover memo from Christine Suh (O’Melveny & Myers) to Mary Egger, Butch Gangle, Alan Burzlaff, Ken Schuessler, and Owen Olpin, copied to Greg Thorpe re: “Stevens Zone Data Cutoff Date Dispute.” (CME01302657) does not request nor convey legal advice, as it is factual, and not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
Instead of attaching the DOE EFT position paper referenced, the documents that follow (CME01602658-63) are documents in the public domain that previously were received by Chevron.
If any of the aforementioned individuals functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1458 September 10,1999 e-mail string. The redacted text of the September 10, 1999 8:22 a.m. e-mail (CDE00307147-48) from Butch Gangle to Greg Thorpe (O’Melveny & Myers) re: “Meeting with NSAI & Chevron” does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the September 10,1999 9:49 a.m. e-mail (CDE00307147) from Mary Egger to Greg Thorpe and Butch Gangle copied to Alan Burzlaff, Ken Schuessler, and Gary Holcomb in reply does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients of this communication functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1468 The redacted text of the September 11, 1999 12:17 p.m. e-mail from Gary Latham to Mary Egger re: “NSAI critique of the Stevens shale studies by DOE and Chevron” does not request nor convey legal advice, as it reports on a September 9, 1999 meeting with the NSAI and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that *339 was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients of this communication functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1503 September 20-21,1999 e-mail string. The redacted text of the September 20, 1999 3:58 p.m. e-mail from Mary Egger to Robert Kripowitez, Gary Latham, Louis Capitanio, and Arnold Smits re: “ASFE data decision” does not request nor convey legal advice as it states only that a draft decision is being circulated, but the draft was not attached, therefore, the e-mail text is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The deleted text of the September 21, 1999 9:45 a.m. e-mail from Lou Capitanio to Mary Egger copied to Gary Latham, Arnold Smits, and Gena Cadieux re: same could be construed to request legal advice and is subject to the attorney-client privilege.
1518 September 23,1999 e-mail string. The redacted text of the September 23,1999 10:14 a.m. e-mail from Mary Egger to Robert Kripowicz copied to Patsy Hicks, Gary Latham, Louis Capitanio, Arnold Smits, and Gena Cadieux re: “Data Decision.” The text “Bob ... data” contains legal advice and is subject to the attorney-client privilege. The remainder of the text does not convey legal advice is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the September 23, 1999 12:32 p.m. reply email from Robert Kripowicz does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the September 23, 1999 2:40 p.m. reply email from Mary Egger does not request nor convey legal advice and not is subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services”).
If any of the recipients of this communication functioned as members of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
*340 1524 September 28,1999 e-mail string. The redacted text of the September 28, 1999 12:19 p.m. e-mail from Butch Gangle to Mary Egger and Greg Thorpe re: “Draft: Chevron Stevens Pricing Data” could be construed to seek legal advice about a draft memo to Norm Stone and is subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
The September 28, 1999 reply from Greg Thorpe to same conveys legal advice and is subject to the attorney-client privilege.
The redacted text of the September 28, 1999 6:23 p.m. reply from Mary Egger to Butch Gangle and Greg Thorpe copied to Christine Suh and Alan Burzlaff conveys legal advice and is subject to attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1525 September 27-28,1999 e-mail string.
The September 27, 1999 3:56 p.m. e-mail from Francis Gaggle to Mary Egger and Greg Thorpe regarding “Chevron’s Stevens Price Data” does not request nor convey legal advice as it reports the fact that Butch Gangle received price data from Chevron and, therefore, is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The September 24, 1999 10:34 p.m. e-mail from Greg Thorpe does not identify the recipient. Assuming the recipients were those listed in the 3:56 p.m. e-mail, the document conveys legal advice and is subject to attorney-client privilege.
The September 28, 1999 10:02 a.m. e-mail memo from Mary Egger to Butch Gangle and Greg Thorpe could be construed to convey legal advice and is subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1526 September 29,1999 e-mail string. The September 29,1999 8:27 a.m. e-mail from Butch Gangle to Mary Egger and Alan Burzlaff does not request nor convey legal advice as it conveys price ratio calculations performed by Alan Burzlaff and his views on not having the meeting in Dallas and is not subject to the attorney-client privilege.
*341 See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
Of significance is Ms. Gangle’s requesting approval from Ms. Egger on negotiating price ratio calculations with Chevron relevant to the IPE’s decision. Arguably this request is subject to the attorney-client privilege. Mr. Gangle was authorized to represent DOE before the IPE. Ms. Egger was not. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of all the e-mails in folder 1526. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
The September 29,1999 11:29 a.m. e-mail from Mary Egger to Butch Gangle copied to Greg Thorpe re: “Pricing Ratios” could be construed to convey legal advice and is subject to the attorney client privilege.
Same ruling as with 8:27 a.m. e-mail. This document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1529 The redacted text of the October 1,1999 9:56 fax cover sheet (CME01102058) and attached factual graphs showing Stevens Zone price data from Alan Burzlaff to Greg Thorpe, Mary Egger, and Ken Schuessler do not request nor convey legal advice and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1530 The redacted text of the October 1,1999 8:01 a.m. e-mail from Butch Gangle to Mary Egger/Greg Thorpe, Alan Burzlaff, and Gary Holcomb re: “Norm’s Final Firm Offer.” The document could be construed to request legal advice and is subject to the attorney-client privilege.
1549 The redacted text of the October 20,1999 cover fax sheet (CME01100834) from Butch Gangle to “DOE Equity Team” copied to Mary Egger, Greg Thorpe and Alan Burzlaff does not request nor convey legal advice as it describes documents from the 1976 Report on 29R Cameros Zone and therefore is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. *342 The attachments (CME01100835-36) are a June 9, 1976 document: “Addendum and Modifications of Reservoir Engineering and Correlation Subcommittees Report on 29 R Cameros Zone” previously were submitted to Chevron’s predecessors and are in the public domain and not privileged. Id.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1553 October 20-21,1999 e-mail string. The redacted text of the October 21, 1999 11:35 a.m. e-mail from Butch Gangle to Mary Egger does not request nor convey legal advice, as it reports Alan Burzlaff is receiving Chevron data and the discovery of “a great deal of materials in our warehouse and out at Elk Hills” and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the October 21,1999 4:50 p.m. e-mail from Mary Egger to Greg Thorpe, Butch Gangle and copied to Alan Burzlaff, and Gary Holcomb re: “Gas Plants inlet & outlet streams gas analysis, Elk” does not request nor convey legal advice, as it reports on a revised NSAI schedule and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1555 October 22,1999 memo from Greg Thorpe and Christine Suh to Mary Egger, Butch Gangle, Alan Burzlaff, Ken Schuessler, and Owen Olpin regarding “Current Price Issue In Rebuttal Brief.” This document conveys legal advice and is subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1562 October 28, 1999 fax cover sheet (CBG0030584) from Alan Burzlaff to Greg Thorpe, Christine Suh, Mary Egger, Butch Gangle, and Ken Schuessler, attaching a October 27, 1999 memo (CBG0030585-86) to F.J. Gangle from Alan Burzlaff (signed) and copied to Greg Thorpe, Mary Egger, Ken Schuessler, and Christine Suh re: “Appropriate ‘Current Price’ Time Period, Stevens Zone Conversion Factor Issue.” The fax cover sheet does not request nor convey legal advice as it is a technical analysis of “the current price period from DOE’s perspective” and is not subject to the attorney-client privilege. The memo (CBG0030585-86) does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
*343 The attachments CBG0030587-92 are factual charts/graphs and should be produced. In particular, CBG0030590 is information from the U.S. Energy Information Administration in the public domain.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1563 Unsigned draft of October 27,1999 Burzlaff memo (unsigned). Same ruling as 1562.
1564 Signed copy of October 27, 1999 Burzlaff memo. See comments on document number 1562.
1565 Signed copy of October 29, 1999 Burzlaff memo. See comments on document number 1562.
1574 The redacted text of the November 1, 1999 4:58 p.m. e-mail from Alan Burzlaff to Mary Egger copied to Butch Gangle, Greg Thorpe and Christine Suh and re: “1942 Prices” does not request nor convey legal advice as it reports on information from a May 23,1941 oil price bulletin from Standard Oil (Chevron’s predecessor) and the 1957 SOZ Redetermination and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1575 November 2, 1999 fax cover sheet (CME01102064) from Alan Burzlaff to Greg Thorpe/Christine Suh, Mary Egger, and Butch Gangle. The fax cover sheet comment does not request nor convey legal advice as it reports that the attachments are “plots of historical prices,” is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). The four attached charts (CME01102065-68) are factual data that also are not privileged.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The attached graphs are factual and should be produced.
1579 November 4,1999 memo from Alan Burzlaff to Butch Gangle Reference to a NSAI letter to Butch Gangle and Norm Stone (Chevron) dated October 27,1999 Subject: “Stevens Zone Gas Conversion Guidelines” copied to Ken Schuessler (CME0141124-35) does not request nor convey legal advice, as it is a series of technical answers to questions posed by the IPE, and therefore is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
*344 A November 5, 1999 fax cover sheet from Butch Gangle to Mary Egger (CME04120-21) indicates this memo was forwarded to Ms. Egger on November 5, 1999, however, CME0401122-23, a November 5,1999 letter from Butch Gangle to Richard Krenek, (IPE) indicating that the November 4, 1999 memo was sent to the IPE first, with no input from Ms. Egger.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1582 November 18,1999 e-mail string.
The November 15,1999 6:13 p.m. e-mail (CME0110253-54) from Alan Burzlaff to Greg Thorpe, Mary Egger, Christine Suh copied to Butch Gangle, Ken Schuessler, and Gary Holcomb re: “Prices in Chevron Current Price Brief to ILA.” could be construed to request legal advice and is subject to the attorney-client privilege. The comparative chart, however, is factual and not subject to the attorney-client privilege.
The November 16,1999 2:01 p.m. response from Greg Thorpe conveys legal advice and is subject to the attorney-client privilege.
The November 16,1999 9:11 p.m. e-mail from Alan Burzlaff to Greg Thorpe copied to Mary Egger, Owen Olpin, Francis Gangle, and Kenneth Schuessler. The first sentence could be construed to request legal advice and is subject to the attorney-client privilege. The comparative chart, however, conveys facts and is not privileged.
The November 18,1999 2:53 p.m. e-mail from Francis Gangle to Mary Egger, Greg Thorpe, Alan Burzlaff copied to Gary Holcomb re: “NSAI Conversion Methodology Meeting in Bakersfield.” does not request nor convey legal advice, as it reports on a November 18, 1999 meeting with IPE and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). This document is also relevant to Chevron’s causation theory. See 6/15/07 TR at 10. The author of the handwritten note on CME01102050 is not identified, but the content is factual.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1586 November 22,1999 fax cover sheet (CSI0020020) from Alan Burzlaff to Greg Thorpe, Christine Suh, Mary Egger, and Butch Gangle transmitting “Plots of conversion factor results (based on NSAI methodology) for varying price window,” with 2 pages of charts (CSI0020021-22). These documents do not request nor convey legal advice and are not subject to the attorney-client privilege. See *345 Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services. ”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1589 The redacted text of the November 23, 1999 11:53 a.m. e-mail from Mary Egger to Alan Burzlaff, Butch Gangle, Greg Thorpe re: “Voicemail from Gary Henderson (Counsel for Chevron)” does not request nor convey legal advice and is not subject to the attorney-client privilege. That text, however, discusses a settlement that the court does not consider to be relevant to this case. Therefore, the document does not need to be produced.
1593 November 30,1999 memo from Alan Burzlaff to Butch Gangle, Greg Thorpe, and Mary Egger re: “Gas Conversion Factor Methodology, Analysis of Impact on NSAI Stevens Zone Provisional Equity Recommendation,” (CSI0020411) copied to Ken Schuessler forwarding 5 charts (CSI0020412-16). Although these documents are marked “privileged and confidential” they do not request nor convey legal advice as they graphically depict a range of “possible equity outcomes related to the proposed price-based gas conversion factors methodologies presented by [the IPE]” and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1596 All of the factual charts in this file also are not subject to the attorney-client privilege, without the notations by Ms. Egger on CME01102038. The source for CME01102034-6 is listed as NPR I Product Revenues (DOE share), BP01 Monthly Status Report and are in the public domain.
1602 E-mail string. The redacted text of the November 15, 1999 6:13 p.m. e-mail (CBG01100275) from Alan Burzlaff to Greg Thorpe, Mary Egger, Christine Suh, copied to Butch Gangle, Ken Schuessler, and Gary Holcomb re: “Prices in Chevron Current Price Brief to ILA” could be construed to request legal advice and is subject to the attorney-client privilege. Mr. Gangle and Mr. Schuessler were authorized to represent the DOE before the IPE/ILA. Ms. Egger was not. This document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this e-mail. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000). The attached three charts, however, are factual and should be disclosed.
*346 The redacted text of the November 16, 1999 5:01 p.m. e-mail from Greg Thorpe to Alan Burzlaff copied to Christine Suh, Own Olpin, Mary Egger and Butch Gangle could be construed to request legal advice and is subject to the attorney-client privilege. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this email. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
The redacted text of the November 24,1999 11:43 a.m. e-mail (CBG01100283) from Greg Thorpe to Alan Burzlaff and Butch Gangle and copied to Gary Holcomb, Greg Thorpe, and Mary Egger could be construed to convey legal advice and is subject to the attorney-client privilege. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this e-mail. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
The redacted text of the December 13,1999 12:34 p.m. e-mail (CBG01100288) from Alan Burzlaff to Greg Thorpe coped to Mary Egger and Butch Gangle re: “Price Window for Stevens Zone Settlement Agreement.” does not request nor convey legal advice as it reports on the fact of a “current price window we agreed to with Chevron” and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
CBG01100289 is the same document as CBG01100288.
1602 The redacted text of the November 18,1999 11:53 a.m. e-mail [CBG01100367-68] (CBG01100367-68) from Butch Gangle to Mary Egger, Greg Thorpe, and Alan Burzlaff copied to Gary Holcomb re: “NSAI conversion methodology meeting in Bakersfield” does not request nor convey legal advice as it reports on the facts of a November 18, 1999 NSAI meeting and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the November 19, 1999 11:05 a.m. e-mail from Greg Thorpe to Butch Gangle, Mary Egger and Alan Burzlaff copied to Gary Holcomb re: same could be construed to convey legal advice and is subject to the attorney-client privilege.
The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this email. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807
*347 (Fed.Cir.2000). If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. In addition, these documents are relevant to the Government’s causation theory. See 6/15/07 TR at 10.
1666 The redacted text of the February 23, 2000 3:16 p.m. e-mail (CDE00307731) from Butch Gangle to Mary Egger re: “Of All Surprises” could be construed to request legal advice and is subject to the attorney-client privilege. This document shows communication between Gangle and Latham about activities with the IPE, that also were conveyed to Ms. Egger. It also shows Gangle advising the ASFE. If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this email. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
1682 March 22-23, 2000 e-mail string. The redacted text of the March 22, 2000 6:31 p.m. e-mail (CDE00307246-47) from Greg Thorpe to Mary Egger, Butch Gangle, Alan Burzlaff, Ken Schuessler, Christine Suh and Owen Olpin re: “letter to krenek” conveys legal advice and is subject to the attorney-client privilege.
The March 23, 2004 5:44 a.m. e-mail from Mary Egger to Greg Thorpe, Butch Gangle, Alan Burzlaff, Ken Schuessler, Owen Olpin, and Christine Suh re: “letter to krenek” could be construed to convey legal advice and is subject to the attorney-client privilege.
The redacted text of the March 22,2000 7:34 a.m. e-mail (CDE00307246) from Man Burzlaff to Mary Egger, Greg Thorpe, Butch Gangle, Ken Schuessler, Owen Olpin, and Christine Suh re: “letter to krenek” does not request nor convey legal advice, as it reports on the “estimated recoverable oil that Chevron is claiming” and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of the March 23, 2000 10:3 8 a.m. e-mail reply from Greg Thorpe to Mary Egger, Alan Burzlaff, Greg Thorpe, Butch Gangle, Ken Schuessler, Owen Olpin, and Christine Suh contains legal advice and is subject to the attorney-client privilege.
The March 23, 2000 1:39 p.m. e-mail reply from Mary Egger to Greg Thorpe, Alan Burzlaff, Greg Thorpe, Butch Gangle, Ken Schuessler, Owen Olpin, and Christine Suh arguably conveys and requests legal advice and is subject to the attorney-client privilege, however, the referenced attachment was not produced in this folder.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
*348 1699 April 25, 2000 memo from Francis Gangle to Mary Egger and Greg Thorpe re: “SOZ 1994 Equity Studies,” transmitting 4 attachments re: same. This document does not request legal advice, as it reports on public documents relevant to the Equity Process Agreement. Attachments 1, 2, and 4 were all sent to Chevron and any privilege was waived, except for the handwritten notes which may be withheld. Attachment 3 (CBG0050319) a February 5, 1998 memo to the IPE from Butch Gangle re: “1998 schedule” is factual, and not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1721 May 19, 2000 e-mail from A. Burzlaff to Greg Thorpe copied to Butch Gangle, Ken Schuessler, and Mary Egger re: “Verification of Capture Analysis in CUSA SOZ Equity Case” together with attachments. CSI004-1053-54 could be construed to request legal advice and is subject to the attorney-client privilege.
CSI0041055-61 are Chevron documents and are not subject to any privilege. CSI0041062-63 are allegedly handwritten notes of A. Burzlaff, but are factual in nature, not privileged, and should be produced.
1725 The text of CBG0040615-16 is a draft letter re: “1994 SOZ Reports” with handwritten notes from Mary Egger to Greg Thorpe, Butch Gangle, and Alan Burzlaff. CBG0040615 was produced, so whatever privilege attached was waived. CBG0040616 could be construed to convey legal advice and is subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1727 May 25, 2000 fax cover sheet (CBG0040577) from Butch Gangle to Mary Egger, Owen Olpin, and Greg Thorpe re: “16G/17G Inclusion,” forwarding three documents provided by Jim Gruber (CBG0040579-85). The text of the fax cover does not request nor convey legal advice and is not subject to attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir. 2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
CBG0040579 is an April 11, 1979 letter sent to Chevron and is not privileged. CBG0040580-81 is a April 9,1979 memo from R.H. Nelson, Capt. CEC, USN to George S. Mclssac, DOE Assistant Secretary re: “Clarification of Letter to Mr. D.L. Bower Regarding Inclusion of Section 16G and 17G Into the Unit Plan Contract.” If R.H. Nelson is an attorney, this document is subject to the attorney-client privilege as it conveys legal advice. As CBG0040585 indicates, CBG0040582-84 is the text of a communication about the terms of a proposed 1978 settlement re: “Elk Hills” that the court considers not relevant to the issues in this case. Production of CBG004058085 is not required.
*349 1808 August 24, 2000 e-mail (CDE01332934) from Louis Capitanio to Mary Egger with ce: to Gary Latham re: “Response to DOE 8/22 Stevens Equity Letter” with attachment “doe8-23.wpd.” This document does not convey legal advice—in fact it states “I could not give any consideration to legal significance of ‘final recommendation’ since I’m not really too familiar with the agreements and protocols.” The document is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1809 The redacted text of the August 24, 2000 10:14 a.m. e-mail (CLC00102286) is the same as 1808. The attached draft letter from Robert Kripowicz to Francis Gangle (CLC00102287) authored by Louis Capitanio, however, arguably could be construed to request legal advice from Ms. Egger and is subject to the attorney-client privilege.
1826 August 29, 2000 e-mail string.
The August 29, 2000 10:42 a.m. e-mail from Arnold Smits to Mary Egger copied to Gary Latham, Louis Capitanio re: “Extension of Time.” The text arguably could be construed to request legal advice and is subject to the attorney-client privilege.
The 1:54 p.m. response from Mary Egger to Arnold Smits and Robert Kripowicz copied to Gary Latham and Louis Capitanio states that Greg Thorpe is “the DOE EFT lawyer.” The text arguably could be construed to request legal advice and is subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1832 Same ruling as 1826.
1835 The redacted text of the September 5, 2000 2:46 p.m. e-mail from Arnold Smits to Mary Egger copied to Louis Capitanio and Gary Latham re: “Supplement to the Protocol for the SOZ and draft letter to Luquatte” does not request nor convey legal advice, as it reports on a September 5, 2002 meeting with Robert Kripowicz and is not subject to the attorney-client privilege.
As to paragraphs 1-3 and paragraph 4 until: “Therefore, I recommend ... question” that arguably could be construed to request legal advice. The remainder of the text in paragraphs four and five are factual and do not request nor convey legal advice and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry *350 [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services”).
This document, however, is relevant to the issues in this case in that Lou Capitanio appears to be in communication with the “DOE EFT” as well as Gena Cadieux and Mary Egger who the Government states is counsel for the ASFE. If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this document. See In re Spalding Sports Worldwide, Inc., 208 F.8d 800, 807 (Fed.Cir.2000).
The redacted text of Ms. Egger’s 3:05 p.m. reply is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
1849 September 11-13, 2000 e-mail string. The redacted text of the September 13, 2000 10:48 a.m. e-mail from Lou Capitanio to Gena Cadieux copied to Arnold Smits, Gary Latham, and Mary Egger re: “Draft Letter Confirming September 7 Protocol Teleconference” does not request nor convey legal advice and is not subject to the attorney-client privilege.
The redacted text of the September 13, 2000 11:01 a.m. reply from Gena Cadieux conveys legal advice and is subject to the attorney-client privilege.
The redacted text of the September 13, 2000 11:22 a.m. e-mail from Lou Capitanio to Gena Cadieux copied to Arnold Smits and Gary Latham does not request nor convey legal advice, as it reports on the fact that Chevron submitted no comment on a NSAI final recommendation and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1881 The redacted text of the October 10, 2000 fax cover sheet (CME01300526) from Butch Gangle to “DOE Equity Legal Team” copied to Mary Egger, Greg Thorpe, Alan Burzlaff, and Owen Olpin re: “In reply to question on Bowers Memo” does not request nor convey legal advice, as it describes various attachments from 1976 proceedings and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that *351 was made ... for the purpose of obtaining legal advice or services.”).
The attached April 17,1976 memo (CME01300527) from R.F. Schlecht re: Section 7 R Evaluation-Godsey-Earlougher, Inc.” with attachment, to 17 recipients who were asked to provide a technical review the Godsey-Earlougher evaluation, none of which appear to be attorneys. CME01300528 is March 31,1976 comparative analysis of Section 7R Reserves that is factual. CME01300529 is the first page of a document prepared by Godsey-Earlougher, Inc. “Department of Navy Petroleum and Oil Shale Reserves-Evaiuation of Stevens Sand Reservoir ... as of March 1, 1976.” None of these documents request nor convey legal advice and are not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
The redacted text of CME01300530-31, a letter to George G. Dowd, Captain JAGG, USN from an engineering firm, “GodsleyEarlougher, Inc.” does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
CME01300532-34 is a report “Oil In Place Determination Section 7R, Tule Elk Oil Field, Kern County, California” by Richard L. Whiting, Consulting, Petroleum, Natural Gas and Geological Engineers, P.O. Drawer B, College Station, Texas 77841. The requestor of the document is not clear, but the document does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services”).
1884 Same ruling as 1881.
1889 October 12, 2000 fax cover memo from Alan Burzlaff to Greg Thorpe, Molly White, Mary Egger, Butch Gangle, and Owen Olpin (CBG0051006) does not request nor convey legal advice, but rather discusses a conference call re: the CUSA’s SOZ technical case. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”)
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
The attached March 14, 2000 Doug Hess USOZ Sectors Chart (CBG0051007-08) text (CBG0051009-10) is a Chevron document (see CBG0051006—“attached as a copy of a page from CUSA’s [Chevron’s] equity spreadsheet ... the attached CUSA materials presented to the IPE ...”). These documents are in the public domain and do not request or convey legal advice. Therefore, CBG0051007-10 are not subject to the attorney-client privilege.
*352 1894 October 12, 2000 e-mail string.
The redacted text of the October 12, 2000 1:11 p.m. e-mail (CME01102747-48) from Greg Thorpe to Alan Burzlaff copied to Butch Gangle re: “SOZ” does not request nor convey legal advice as it requests clarification regarding technical issues and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”). If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
The redacted text of the October 12, 2000 3:18 p.m. e-mail (CME01102747) from Alan Burzlaff to Greg Thorpe copied to Butch Gangle, Mary Egger, and M. White re: “SOZ” does not request legal advice and is not subject to the attorney-client privilege.
The redacted text of the October 12, 2000 3:38 p.m. e-mail (CME03302746-47) from Greg Thorpe to Alan Burzlaff copied to Butch Gangle, Mary Egger, Owen Olpin, and Molly White could be construed to convey legal advice and is subject to the attorney-client privilege.
The redacted text of the October 12, 2000 7:47 p.m. e-mail (CME01102746) from Alan Burzlaff to Greg Thorpe copied to Mary Egger, Butch Gangle, Owen Olpin, and Molly White re: “SOZ” does not request legal advice, as it discusses the technical significance of “Chevron’s 166/176 Methodology” and is not subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
1897 Same ruling as 1894.
1898 Same ruling as 1889.
1899 The redacted text of the October 17, 2000 1:27 p.m. e-mail from Gary Latham to Robert Kripowicz copied to Mary Egger and Arnold Smits re: “Protocol on IPE Communications” does not request legal advice, except for the last sentence of the first paragraph which is directed to Ms. Egger. The remainder of the text of the first paragraph, however, is highly relevant to the issues in this case providing Mr. Latham’s explanation to ASFE Kripowicz of Mr. Latham’s understanding and views about the ex parte communications barred by Administrative Order 96-01. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
This document appears to evidence past communications between Mr. Latham and the IPE (NSAI)If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited *353 by the Equity Process Agreement. Assuming arguendo, Ms. Egger’s receipt of this document and question directed to her is subject to the attorney-client privilege, the court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this email. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
1902 October 17-19, 2000 e-mail string. The reacted text of the October 17, 2000 1:27 p.m. e-mail from Gary Latham to Robert Kripowicz copied to Mary Egger and Arnold Smits re: “Protocol on IPE communications. Same ruling as 1899.
The October 19, 2000 4:05 p.m. reply e-mail from Mary Egger to Gary Latham and Richard Kripowicz copied to Arnold Smits re: “Protocol on IPE communications” conveys legal advice and is subject to the attorney-client privilege. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of all of the e-mails in folder 1902. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
1905 The redacted text of the October 20, 2000 7:50 a.m. e-mail reply from Robert Kripowicz to Mary Egger and Gary Latham re: “Protocol on IPE Communications” in response to the October 19, 2000 4:05 p.m. e-mail (see 1902) does not request nor convey legal advice and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
2049 January 19, 2001 12:32 p.m. e-mail from Alan Burzlaff to Mary Egger and Greg Thorpe copied to Ken Schuessler, Butch Gangle, and Molly White re: “Chevron’s response” arguably could be construed to request legal advice as it comments on Chevron’s legal filings and is subject to the attorney-client privilege. If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
2058 The redacted text of the January 29, 2001 10:06 a.m. e-mail from Butch Gangle to Mary Egger, Gary Latham, Louis Capitanio, Arnold Smits, Greg Thorpe, and Alan Burzlaff re: “Comments On Talking Points” arguably could be construed to request legal advice and is subject to the attorney-client privilege.
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement. The court has determined that the misconduct exception to the attorney-client privilege doctrine requires production of this e-mail. See In re Spalding Sports Worldwide, Inc., 203 F.3d 800, 807 (Fed.Cir.2000).
2111 The redacted text of the March 13, 2001 11:50 a.m. e-mail from Gary Latham to Mary Egger copied to Arnold Smits re: “Time Periods for preparation of preliminary and final SOZ equity decisions” does not request nor convey legal advice and is not subject to the *354 attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
2130 The redacted text of the May 3, 2001 8:08 a.m. e-mail (CDE00304468-69) from Butch Gangle to Mary Egger re: “SOZ Equity Update Report” does not request nor convey legal advice, as it reports on a April 16, 2001 meeting in Golden with STA, a meeting on April 17, 2001 with DOE engineers in Bakersfield, where Greg Thorpe was in attendance and a follow-on “regularly scheduled conference call” with IPE “to discuss ... progress on the SOZ equity finalization,” and is not subject to the attorney-client privilege. See Spalding Sports Worldwide, Inc., 203 F.3d 800, 805 (Fed.Cir.2000) (“[T]he central inquiry [is] whether the communication was one that was made ... for the purpose of obtaining legal advice or services.”).
If any of the recipients functioned as a member of the “DOE field equity technical team,” this document may evidence an improper ex parte communication prohibited by the Equity Process Agreement.
2142 The reacted text of the June 20, 2001 3:04 p.m. e-mail from Arnold Smits to Gena Cadieux coped to Gary Latham re: “Comparison of the Effects of Different Gas Conversion Methods on Equity” arguably could be construed to request legal advice and is subject to the attorney-client privilege. The attached chart, however, is factual and not privileged.
2152 The redacted text of the June 28, 2004 2:04 p.m. e-mail from Gary Latham to Robert Kripowiez copied to Mary Egger, Gina Cadieux, and Arnold Smits re: “Stevens Zone equity-Basis for Conversion from natural gas to Barrels of oil equivalent (BOE)” arguably could be construed to convey legal advice and is subject to the attorney-client privilege.
2195 Power point slide presentation prepared by Butch Gangle and presented on November 6, 2001 to DOE Equity Process Team. The majority of this document (CBG0124105-19, 21) are technical bullets or graphs re: “Shallow Oil Zone, DOE Modeling Effort, NSAI Modeling Effort, IPE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6658258. Public record. Not legal advice.