In re Methyl Tertiary Butyl Ether (\MTBE\") Products Liability Litigation"
In re Methyl Tertiary Butyl Ether (\MTBE\") Products Liability Litigation"
Opinion of the Court
OPINION AND ORDER
I. INTRODUCTION
In 2008, the New Jersey Department of Environmental Protection (“NJDEP”) filed a Complaint against various corporations for their use and handling of the gasoline additive methyl tertiary butyl ether (“MTBE”), alleging that MTBE contaminated New Jersey’s groundwater. Defendants now move to compel the production of certain documents based on the various entries on NJDEP’s November 17, 2011 and January 27, 2012 privilege logs. For the reasons set forth below, defendants’ motion is denied in part and granted in part.
In early 2011, defendants moved to compel the production of documents that NJDEP claimed were protected under the deliberative process privilege.
On December 27, 2011, defendants conveyed to NJDEP their position that some of the entries in NJDEP’s November 12, 2011 and December 1, 2011 privilege logs were still inadequate.
NJDEP submitted its revised privilege log on January 27, 2012 modifying some of the entries from the December 1, 2011 log, but none of the entries from the November 17, 2011 log. Defendants now challenge seventy-five of the entries in NJDEP’s November 17, 2011 and January 27, 2012 logs as inadequate.
III. APPLICABLE LAW
A. New Jersey’s Deliberative Process Privilege
State law determines the existence and scope of privileges in diversity
To qualify as privileged, a document must be both “pre-decisional” and “deliberative.”
B. Federal Privilege Law
Whereas “ ‘the substantive question of privilege is decided by [state] law,’ the procedural requirements for asserting a privilege in federal court are governed by federal law.”
IV. DISCUSSION
As a preliminary matter, on May 1, 2012, I ordered plaintiffs to produce a number of documents to defendants following an in camera review during which I determined that those documents were not pre-decisional and/or not deliberative.
Defendants separate the seventy-three remaining entries into three categories: (1) entries which inadequately identify the decision or policy at issue; (2) entries which inadequately describe “draft” documents; and (3) entries which make clear that the documents were sent to a third party outside NJDEP.
A. Entries Which Defendants Challenge as Inadequately Identifying the Decision or Policy at Issue
In order to establish that a document is “pre-decisional” and thus potentially protected by the deliberative process privilege, NJDEP “must show that the material was prepared to assist the agency in the formulation of some specific decision.”
Because the adequacy of privilege log entries depends on whether the other parties will be able to assess the validity of the privilege claim,
Email from Eddie Davis to Walter Kokola regarding Five Points Exxon in Mantua Twp. Pre-decisional and deliberative because it contains comments regarding potential enforcement actions by Department, relative to ongoing plan of action(s) which may or may not be followed.33
Defendants’ challenge this entry because: “No specific decision or policy identified. References to ‘potential enforcement actions’ and ‘ongoing plan of action(s)’ are too vague.”
The deliberative process privilege protects deliberations regarding all decisions facing the agency; there is no limitation that it only cover deliberations that might result in formal policies or actions. Therefore the entry for NJDEP-MTBE-NSSD2PR-00044-47 — which asserts that the document is an “internal discussion regarding calculation of site coding percentages”
In contrast, meeting agendas— such as NJDEP-MTBE-NSSD2PR-00489 and NJDEP-ESI-00005289-5291 — are not protected by the deliberative process privilege, as they only list topics to be discussed at a future time. Agendas are not themselves deliberative documents.
For these reasons, the privilege log entries for the following documents do not adequately identify the decision at issue, and are facially insufficient:
NJDEP-MTBE-NSSD2PR-00003-6
NJDEP-MTBE-NSSD2PR-00235
NJDEP-MTBE-NSSD2PR-00297-301
NJDEP-MTBE-NSSD2PR-00446-7-
NJDEP-MTBE-NSSD2PR-00482
NJDEP-MTBE-NSSD2PR-00489
NJDEP-ESI-00000789-91
NJDEP-ESI-00004152-4175
NJDEP-ESI-00005003
NJDEP-ESI-00005289-5291
NJDEP-ESI-00012022
NJDEP-ESI-00012023
Any existing deliberative process privilege with regard to these documents is waived, and plaintiffs are ordered to produce them to defendants. The privilege log entries are sufficient for the remaining documents identified by defendants in the ‘entries which inadequately identify the decision or policy at issue’ category.
B. Entries Which Defendants Challenge as Inadequately Describing “Draft” Documents
In many of their privilege log entries, plaintiffs use some variation of the following language to assert that the document is protected: “[p]re-decisional and deliberative because the letter is a draft in non-final form subject to further review and revision.”
The City apparently believes that by using the word “draft” or “deliberations,” the privilege automatically attaches. The City is mistaken. A draft may be covered by the privilege, to the extent that it “reflects the personal opinions of the writer rather than the policy of the agency.” However, the fact that something is a draft does not eliminate the City’s obligation to specify the particular policy or decision to which the document relates. Furthermore, the City fails to include information about the draft documents “such as their ‘function and significance in the agency’s decisionmaking process,’ ” which is necessary to justify the assertion of the deliberative process privilege.43
Thus, plaintiffs’ privilege log entries are facially insufficient unless they both specify a particular policy or issue to which the draft document relates and identify the document’s function and significance in NJDEP’s decisionmaking process.
Many of the entries in this category fail to identify the decision or policy to which the document relates. For example, the entry for document NJDEP-ESI00005450-454 reads:
Untitled draft document. Document discusses various issues and suggestions relating to the Private Well Testing Act. Pre-decisional and deliberative because the document is a draft in non-final form subject to further review and revision.44
This entry does not give any indication as to which decision or policy the document pertains. The vague reference to “issues and suggestions relating to the Private Well Testing Act” is insufficient as it gives neither defendants nor the Court enough information to assess the validity of the privilege claim. In contrast, the defect in the entry for NJDEP-ESI-00011963-64— which describes the document as a draft of a press release
Other of plaintiffs’ privilege log entries are facially insufficient because they do not give enough information to ascertain the document’s role in the agency’s decisionmaking process. For example, the entry for document NJDEP-ESI00000257 reads:
Email from [an agency official] to [numerous individuals] regarding section chief meeting. Email attaches draft minutes of 9/12/00 S/SC meeting. Predecisional and deliberative because the attached minutes are in non-final draft form and the email discusses potential changes and revisions to the minutes.47
Absent from this entry is information regarding the topic of the meeting and the function of the minutes. It is impossible to know whether a discussion about revising the minutes is protected by the deliberative process privilege without knowing how — or even whether — meeting minutes are used in NJDEP deliberations.
For the above reasons, the privilege log entries for the following documents are facially insufficient:
NJDEP-MTBE-NSSD2PR-00128-170
NJDEP-MTBE-NSSD2PR-00193-214
NJDEP-ESI-00000257
NJDEP-ESI-00000258-259
NJDEP-ESI-00005442
NJDEP-ESI-00005443-5444
N JDEP-E SI-00005445-5449
NJDEP-ESI-00005450-5454
NJDEP-ESI-00005455-5458
NJDEP-ESI-00005459-5461
NJDEP-ESI-00005462-5466
NJDEP-ESI-00010826-10835
N JDEP-E SI-00011357-11359
N JDEP-E SI-00011953
NJDEP-ESI-00011963-11964
NJDEP-ESI-00011965-11966
NJDEP-ESI-00012037
NJDEP-ESI-00012023
Plaintiffs are ordered to produce these documents to defendants. The privilege log entries are sufficient for the remaining documents identified by defendants in the ‘entries which inadequately describe draft documents’ category.’
C. Entries Which Defendants Challenge as Making Clear that the Documents Were Sent to a Third Party
This category contains only two entries: NJDEP-ESI-00010543-52 and NJDEPESI-00011993-94.
The log entry for NJDEP-ESI00011993-94 describes it as “Letter from Michael Flite to Michael Costello regarding Skyline Service Center. Pre-decisional and deliberative because letter discusses proposed course of action relating to site and underground storage tanks.”
V. CONCLUSION
For the reasons stated above, defendants’ motion is granted in part and denied in part. Plaintiffs are deemed to have waived the deliberative process privilege for the above-specified documents for which their privilege log entries are facially insufficient.
SO ORDERED.
. See In re MTBE Prods. Liab. Litig., 274 F.R.D. 106, 108-09 (S.D.N.Y. 2011).
. See id. at 112-13, 115.
. Id. at 112.
. Id.
. See 1/12/12 Letter from Peter Sacripanti to the Court (“Sacripanti Letter”) at 4; 2/28/12 Letter from Stephen Riccardulli to the Court ("Riccardulli Letter”) at 1-2.
. Sacripanti Letter at 5.
. See 1/20/12 Status Conference Transcript (“Tr.”) at 26-28.
. Id. at 27.
. Id. at 27-28.
. 256 F.R.D. 403 (S.D.N.Y. 2009).
. No. 10 Civ. 0699, 2011 WL 1742748 (S.D.N.Y. May 5, 2011).
. Tr. at 27-28.
. See Riccardulli Letter at 6-8.
.See id. at 9.
. Fed.R.Evid. 501; Dixon v. 80 Pine Street Corp., 516 F.2d 1278, 1281 (2d Cir. 1975) ("[I]n a diversity case, the issue of privilege is to be governed by the substantive law of the forum state.”).
. In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 754 A.2d 1177, 1181-82 (2000).
. Education Law Ctr. v. New Jersey Dep’t of Educ., 198 N.J. 274, 966 A.2d 1054, 1061 (2009).
. In re MTBE, 274 F.R.D. at 110 (quoting Education Law Ctr., 966 A.2d at 1061).
. Integrity, 754 A.2d at 1182.
. Id.
. Id.
. Education Law Ctr., 966 A.2d at 1067 (emphasis added).
. Id. at 1061 (quoting Integrity, 754 A.2d at 1177).
. In re MTBE, 274 F.R.D. at 111 (quoting Dixon, 516 F.2d at 1280).
. Fed.R.Civ.P. 26(b)(5)(A)(ii).
. In re MTBE, 274 F.R.D. at 112.
. See Riccardulli Letter at 4-8.
. Tigue v. United States Dep’t. of Justice, 312 F.3d 70, 80 (2d Cir. 2002).
. Davis, 2011 WL 1742748, at *2 (quoting Tigue, 312 F.3d at 80).
. 3/13/12 Letter from Counsel for Plaintiffs to the Court ("NJDEP Letter”) at 5 (quoting Riccardulli Letter at 5).
. Tigue, 312 F.3d at 80.
. See Fed.R.Civ.P. 26(b)(5)(A)(ii).
. NJDEP Letter, Ex. D at 1.
. Id.
. Id. at 5. The entry for document NJDEPESI-00011805 represents that the document is an "[ajttachment to NJDEP-ESI-00011802 through NJDEP-ESI-00011804.” Id. at 12. Because those documents refer to potential actions in connection with a specific site, NJDEP-ESI-00011805 is likewise protected.
. NJDEP Letter, Ex. Cat 1.
. Similarly, the entries for documents NJDEP-ESI-00011709, NJDEP-ESI00011751 and NJDEP-ESI-0001175 6 are sufficient — each asserts that the document "lists potential monitoring points,” and therefore the decision that each addresses is NJDEP’s decision of which monitoring points to use. See NJDEP Letter, Ex. D at 10-11.
. See Fox News Network, LLC v. United States Dep't of the Treasury, 739 F.Supp.2d 515, 550-51 (S.D.N.Y. 2010) ("Five documents are emails containing agendas for conference calls.... Nothing about these conference call agendas is deliberative. Accordingly, they must be released in full....”).
. See Davis, 2011 WL 1742748, at *2 (" 'The privilege also does not extend to materials related to the explanation, interpretation or application of an existing policy, as opposed to the formulation of a new policy.’ ”) (quoting Resolution Trust Corp. v. Diamond, 137 F.R.D. 634, 641 (S.D.N.Y. 1991)).
. See NJDEP Letter, Ex. D at 4 ("Email containing draft responses to questions from Todd Bates to N/A regarding an EPA slide show and MTBE sites in NJ. Pre-decisional and deliberative because it contains proposed answers to questions on Department policy.”).
. See Riccardulli Letter at 4-6.
. NJDEP Letter, Ex. D at 4.
. Davis, 2011 WL 1742748, at *5 (quoting Tigue, 312 F.3d at 80; New York Times Co. v. United States Dep’t of Def., 499 F.Supp.2d 501, 515 (S.D.N.Y. 2007)).
. NJDEP Letter, Ex. D at 6.
. See id. at 13.
. Davis, 2011 WL 1742748, at *2 (quoting Resolution Trust Corp., 137 F.R.D. at 641).
. NJDEP Letter, Ex. D at 3.
. See Riccardulli Letter at 4-6.
. See id. at 8.
. NJDEP Letter at 9.
. Id., Ex. D at 14.
. See NJDEP Letter at 10.
. See id. at 9-10.
. See id. at 10.
. Tr. at 27.
Reference
- Full Case Name
- In re METHYL TERTIARY BUTYL ETHER (\MTBE\") PRODUCTS LIABILITY LITIGATION"
- Cited By
- 3 cases
- Status
- Published