Emmet G. Sullivan, United States District Judge.
Pending before the Court are the U.S. Department of Treasury's contested privilege assertions that were not resolved by the Court's December 20, 2016 Opinion ordering Treasury to: (1) produce all documents over which it asserted the deliberative process privilege in isolation; and (2) submit a revised privilege log and in camera production. Upon consideration of Respondents' motion to compel, response and reply thereto, the relevant caselaw, the in camera production and the entire record, and for the reasons set forth below, the unresolved portion of the motion is
Respondents in this miscellaneous action are plaintiffs in Black v. PBGC, Case No. 09-13616, a civil action pending in the United States District Court for the Eastern District of Michigan. Respondents are current and former salaried workers at Delphi Corporation ("Delphi"), an automotive supply company. In the civil action, Respondents allege that in July 2009, the Pension Benefit Guaranty Corporation ("PBGC") improperly terminated Delphi's pension plan for its salaried workers ("Plan") via an agreement with Delphi and General Motors. Treasury is not a party to the civil action.
On July 9, 2015, Respondents filed a motion to compel the production, or alternatively in camera review, of the documents Treasury withheld or redacted under four separate claims of privilege: (1) the deliberative process privilege; (2) the presidential communications privilege; (3) the attorney-client privilege; and (4) the work product doctrine. See generally Mot. Compel, ECF No. 30. After reviewing the withheld documents in camera, the Court concluded that Treasury failed to provide a specific articulation of the rationale supporting the deliberative process privilege and ordered Treasury to produce to Respondents all of the documents over which it asserted the deliberative process in isolation. See Op., ECF No. 42. Noting that Treasury had withdrawn nearly 75% of its privilege assertions when first ordered to make an in camera submission, the Court ordered Treasury to revise its privilege log and submit an updated in camera production containing only the documents withheld under the presidential communications privilege, the attorney-client privilege, or the work product doctrine. The 85 documents over which Treasury asserts one of these privileges are now at issue before the Court.
The purpose of the presidential communications privilege is to "guarantee the candor of presidential advisers and to provide `[a] President and those who assist him ... [with] freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.'" In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997) (quoting U.S. v. Nixon, 418 U.S. 683, 708, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). This privilege extends not only to communications directly involving the President, but also "to communications authored or received in response to a solicitation by members of a presidential adviser's staff, since in many instances advisers must rely on their staff to investigate and issue and formulate the advice to be given to the President." ACLU v. Dep't of Justice, Case No. 10-123, 2011 U.S. Dist. LEXIS 156267 *30 (D.D.C. Feb. 14, 2011) (citing In re Sealed Case, 121 F.3d at 752). "Unlike the deliberative
Treasury has raised the presidential communications privilege as the basis for withholding 63 documents from production. The documents can be grouped into four categories: (1) drafts of presidential speeches;
The Court can swiftly resolve the first two categories of documents. With regard to the draft presidential speeches, Respondents, in their reply brief, "concede that these two documents are covered by the privilege" because they "would have been seen by the President[.]" Reply, ECF No. 36 at 18. By the same token, the draft letter containing a handwritten request from President Obama to consult Dr. Summers regarding the Delphi salaried pension plan is also covered by the presidential communications privilege.
The vast bulk of the documents withheld from production under the presidential communications privilege—i.e., 53 of the remaining 60 documents—fall into the third category. To justify withholding these draft memoranda from production, Treasury submitted a declaration from Jennifer M. O'Connor, the Deputy Counsel to the President. See O'Connor Decl., ECF No. 35-3. Ms. O'Connor's responsibilities in the White House Counsel's Office include providing legal advice to White House staff, including on matters involving the invocation of the presidential communications privilege. Id. ¶ 1. Ms. O'Connor represents that all of the withheld documents "relate to the President's decisions as to how the United States should address the financial distress of several of its large automobile corporations and protect the country from the potential consequences of their bankruptcy." Id. ¶ 7. Ms. O'Connor also sheds light on the relationship between the Auto Task Force, Dr. Lawrence Summers, and the President. During the time of the challenged communications, Dr. Summers served as co-chair of the Auto Task Force, the Director of the National Economic Council, and Assistant to the President for Economic Policy. Id. ¶ 8. In this role, Dr. Summers led the
In In re Sealed Case, the Court of Appeals, determined that "communications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President." In re Sealed Case, 121 F.3d at 752. In defining the scope of the privilege, the Court reasoned that "[g]iven the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves." Id.
Here, the draft memoranda from Auto Team members to Dr. Summers concerning the Auto Task Force's duties are clearly protected by the presidential communications privilege. Respondents do not seem to dispute that Dr. Summers, the co-Chair of the Auto Task Force and Assistant to the President for Economic Policy, qualifies as a presidential adviser for purposes of the privilege. See Reply, ECF No. 36 at 18-19. Not only did President Obama select Dr. Summers to helm the Auto Task Force, a group formed to review viability plans submitted by major automotive manufacturers, but Dr. Summers also advised the President on economic issues on a daily basis.
Respondents contend that the presidential communications privilege should not apply because Treasury has not shown that the challenged documents were solicited by Dr. Summers, rather than merely received by him. See Reply, ECF No. 36 at 19. According to Respondents, "if everything a presidential advisor or his staff received was automatically covered by the privilege, vast swaths of government communications could be hidden from public view merely by regularly copying such people on emails." Id. While Respondents are correct that the presidential communications privilege applies only to documents that are "solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President[,]" In re Sealed Case, 121 F.3d at 752, Respondents' argument is unpersuasive for two reasons. First, the White House Counsel's Office expressly represented that the disputed materials "were
For the same reasons, the seven documents in the fourth category—i.e., emails among Auto Team members regarding the formulation of advice to the President—are covered by the presidential communications privilege. Although, Dr. Summers may not be present on some of these communications, it is apparent from the documents' content that the Auto Team members were responding to requests for information by Dr. Summers or the President. In these communications, Auto Team members discussed the preparation of memoranda to the President and harmonized edits to be presented to Dr. Summers. Because the presidential communications privilege extends "to communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate[,]" these documents are privileged. Id. at 752.
Although the Court has established that the documents in all four categories are covered by the presidential communications privilege, the Court's inquiry is not complete. The presidential communications privilege "is qualified, not absolute, and can be overcome by an adequate showing of need." Id. at 745. To overcome the privilege, Respondents must demonstrate two elements: (1) that the subpoenaed material likely contains evidence "directly relevant to issues that are expected to be central to the trial[;]" and (2) that the evidence "is not available with due diligence elsewhere." Id. at 754. Here, Respondents have satisfied both prongs. First, Respondents assert that they need the withheld material because it may show pressure exerted by Treasury or the White House to terminate the Delphi Plan for impermissible or political reasons, an issue at the core of the parties' dispute in the Michigan case. Mot. Compel, ECF No. 30 at 32. In that case, Respondents allege that the PBGC's termination of the Delphi Plan was not justified by the applicable statute but instead the result of undue pressure imposed by Treasury and the Auto Task Force. Id. at 4. Rather than substantively engage in the needs analysis or attempt to distinguish the cases upon which Respondents rely, Treasury argues unconvincingly that Respondents' rationale for the material is "nothing but rank speculation." Opp'n, ECF No. 35 at 24. Nonetheless, for substantially the same reasons advanced by Respondents, the Court is persuaded that Respondents have made "at least a preliminary showing of necessity
Treasury has withheld or redacted 15 documents under the attorney-client privilege.
As a threshold matter, six of the challenged documents concern communications between Auto Team members and attorneys at Cadwalader, Wickersham, and Taft LLP ("Cadwalader"), one of the law firms that served as outside counsel to the Auto Team.
With regard to the remaining nine documents, each one concerns a communication between Auto Team members and Matthew Feldman, an Auto Team member who is also an attorney.
Treasury has raised the attorney work product doctrine over seven documents.
Here, there can be little doubt that the material Treasury has withheld under the work product doctrine is protected from disclosure. Four of the seven documents at issue are draft memoranda authored by Cadwalader attorneys.
Nonetheless, as with the presidential communications privilege, the work product doctrine is not an absolute privilege. Disclosure may be warranted if the party seeking the privileged material can make a showing of substantial need and an inability to obtain the equivalent without undue hardship. See Upjohn, 449 U.S. at 400, 101 S.Ct. 677. Respondents, however, have not articulated a specific need for these documents. Whereas Respondents claim that
Treasury has withheld one document from production on grounds of relevance.
For the foregoing reasons, the unresolved portion of Respondents' motion to compel the production, or alternatively in camera review, of the documents withheld and redacted by Treasury is