Oceana, Inc. v. Ross

Background

Oceana, Inc. moved to compel production of 10 documents that the defendants had withheld from a second supplemental administrative record by claiming the deliberative-process privilege. The defendants later stated that they would release two documents, leaving eight documents in dispute. The court reviewed the disputed documents privately, without disclosing their privileged contents.

The case involved review of agency action under the Administrative Procedure Act. The court explained that the deliberative-process privilege generally protects documents created before an agency decision that contain opinions, recommendations, or advice about agency policy. It does not protect purely factual material unless the factual and deliberative material cannot be separated. Because the privilege is qualified, a court may order disclosure when the requesting party’s need for the material and the need for accurate fact-finding outweigh the government’s interest in confidentiality.

Analysis

The court applied four balancing factors: the documents’ relevance, the availability of other evidence, the government’s role in the litigation, and the risk that disclosure would discourage candid internal discussion.

The court found that AR 104, AR 105, AR 106, and AR 107 were predecisional and deliberative. It concluded that the risk of chilling candid discussions outweighed Oceana’s need for disclosure, so the privilege applied to those documents.

For AR 108, the court found that part of the email was purely factual and therefore was not privileged. The privilege did apply to the portion beginning with the quoted email from Kevin Stierhoff and the material following it. The defendants were required to redact the privileged portion and produce the rest.

The court found that AR 109, an email chain containing a plot graphic, was predecisional but not deliberative. It concluded that the graphic did not reveal decision-makers’ mental processes and posed little risk of chilling discussion. The defendants therefore had to produce AR 109 in full.

The court also found AR 112 and AR 113 predecisional and deliberative, and allowed the defendants to withhold them. It sustained the defendants’ privilege objections as to AR 104, AR 105, AR 106, AR 107, part of AR 108, AR 112, and AR 113, and overruled the objections as to the nonprivileged portions of AR 108 and all of AR 109.

Privilege Log

Under Federal Rule of Civil Procedure 26(b)(5)(A), a party claiming privilege must describe withheld materials sufficiently for the opposing party to assess the claim without revealing privileged information. The court found that the defendants’ privilege-log entries for the documents reviewed privately did not meet that standard. Because the court had supplied adequate descriptions of the eight disputed documents, it ordered the defendants to amend and serve the privilege log.

Disposition

The court granted in part and denied in part Oceana’s motion to compel. It permitted the defendants to withhold AR 104, AR 105, AR 106, AR 107, portions of AR 108, AR 112, and AR 113. It ordered the defendants to provide Oceana with a redacted version of AR 108, the complete AR 109, and a revised privilege log no later than May 8, 2020.