The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
This document relates to: New Jersey Department of Environmental Protection, et al. v. Atlantic Richfield Co., et al., 08 Civ. 00312
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.*fn1 On March 8, 2011, I denied defendants' motion, holding that: New Jersey's deliberative process privilege did apply; NJDEP had asserted it correctly; and defendants did not have a compelling need for the documents sufficient to overcome the protection afforded by the qualified privilege.*fn2 However, I agreed with defendants that NJDEP's existing privilege log was "insufficiently detailed" and that its entries were "bare-boned."*fn3 Accordingly, I ordered NJDEP to produce a revised privilege log identifying each document "with the specificity needed to demonstrate that the protected communication was pre-decisional and deliberative."*fn4
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.*fn5 Defendants
requested that NJDEP revise the
privilege logs by January 27, 2012*fn6 and raised the
issue at the January 20, 2012 status conference.*fn7
During that conference, I cautioned NJDEP "[y]ou act at your peril. If
you did not submit a revised log and I have to do challenges of that
log and you are inadequate, you will have waived that
privilege."*fn8 To provide NJDEP with additional
guidance, I suggested that it read two decisions of mine dealing with
deliberative process*fn9 - S.E.C.
v. Collins & Aikman
Corp.,*fn10 and Davis v. City of New York.*fn11
NJDEP agreed to provide a revised privilege log by January
27, 2012, noting that it understood that it would stand on the entries
in its January 27 log, "win or lose."*fn12
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.*fn13 Based on the Court's warning to NJDEP at the January 20, 2012 status conference, defendants ask the Court to deem the privilege waived for the documents identified in those seventy-five log entries.*fn14
A. New Jersey's Deliberative Process Privilege
State law determines the existence and scope of privileges in diversity actions.*fn15 New Jersey's deliberative process privilege "permits the government to withhold documents that reflect advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated."*fn16 The privilege seeks to "ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached"*fn17 and also "to ensure that an agency 'is judged by policy adopted, not policy merely considered.'"*fn18
To qualify as privileged, a document must be both "pre-decisional" and "deliberative."*fn19 Pre-decisional is defined as "generated before the adoption of an agency's policy or decision."*fn20 Deliberative is defined as "contain[ing] opinions, recommendations, or advice about agency policies."*fn21 Whether a document is protected under the deliberative process privilege depends "first, on whether the information sought is a part of the process leading to formulation of an agency's decision, and, second, on the material's ability to reflect or to expose the deliberative aspects of that process."*fn22 "Once the threshold requirements have been proved by the government, the privilege is invoked, resulting in a ...