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Tummino v. Von Eschenbach

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


May 15, 2007

ANNIE TUMMINO, ET AL., PLAINTIFFS,
v.
ANDREW C. VON ESCHENBACH, IN HIS OFFICIAL CAPACITY AS ACTING COMMISSIONER OF THE FOOD AND DRUG ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Pohorelsky, Magistrate Judge

DECISION AND ORDER

Before the court is the second in a series of in camera submissions by the defendant of documents relating to the plaintiffs' second set of document requests which have been withheld from production on the basis of the deliberative process privilege. Pursuant to Judge Korman's direction, this court has been reviewing such documents, in camera, for proper assertion of the privilege and evidence of agency bad faith. For its in camera review here, the court has followed the same procedure it employed in reviewing the defendant's first submission, separating its findings into three categories and listing them in corresponding appendices.*fn1 In addition, the court reviews the present submission for duplicativeness, something which the court was unable to do during its first in camera review despite having been instructed to do so by Judge Korman because at that time no basis for a comparison had been presented to the court, i.e., those documents already turned over to the plaintiffs. Since such a basis now exists -- that is, the defendant's first in camera submission -- the court can now determine whether the documents here are, at the very least, duplicative of those previously withheld by the defendant.

The present submission consists of 52 documents, totaling 150 pages, for which the deliberative process privilege has been asserted. It is also accompanied by a privilege log that has been expanded in form and content to address the court's concerns of insufficiency raised in its November 2006 order. (See Tummino v. von Eschenbach, No. 05-CV-366, slip op. at 19-24 (E.D.N.Y. Nov. 6, 2006).) After reviewing the submission, the court finds the deliberative process privilege properly asserted as to all but three of the documents. Those three documents, listed in Appendix A, are not privileged and shall be produced to the plaintiffs for inspection and copying within ten (10) days. Listed in Appendix B are documents that the court finds evidence agency bad faith. Since many of those documents are duplicative, either in whole or in part, of documents previously submitted by the defendant as part of its first in camera submission, the court has also listed the Bates numbers of the corresponding duplicates. Finally, no documents are listed in Appendix C since the present submission, including the privilege log, has provided the court with sufficient information to evaluate the propriety of the defendant's assertion of privilege.

SO ORDERED:

VIKTOR V. POHORELSKY United States Magistrate Judge

APPENDIX A -- NON-PRIVILEGED DOCUMENTS*fn2

Bates Numbers:

TUMMINO -- 6733-6735

6772-6774 8068

APPENDIX B -- DOCUMENTS EVIDENCING BAD FAITH Present Submission Previous Submission (Duplicate) TUMMINO -- TUMMINO -- 8482 1038 1625-28 1997-98 7486-87 7282-83 6771 3928-29 1641-42 7549-50 7545-46 7551-52 7232-35 5273-76 2044-2047 7178-82 8438 1665 1561 1156 7563 2013-14 8010-11 1553 7106-08 6745-47 6737-38 5411-13 7160-62 7163-64 5409-10 1470 1546 1235 1984-86 1236-37 7428 8426 8643 8731 8738 1545 5774 1987 7427 7492-93 7507-08 8066-67 7422-24 5818-19 8094-95 1674


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