[Federal Register Volume 70, Number 18 (Friday, January 28, 2005)]
[Notices]
[Pages 4154-4157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1575]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[Docket No. PAPO-00, ASLBP No. 04-829-01-PAPO NEV-01]
Atomic Safety and Licensing Board; Department of Energy (High
Level Waste Repository: Pre-Application Matters); First Case Management
Order (Regarding Preparation of Privilege Logs)
January 24, 2005.
Before Administrative Judges: Thomas S. Moore, Chairman, Alex S.
Karlin and Alan S. Rosenthal
The purpose of this order is to promote good management and
efficiency in the resolution of documentary privilege disputes during
the pre-license application phase of the expected application by the
United States Department of Energy (DOE) for a license to construct a
repository for high-level radioactive waste (HLW) at Yucca Mountain,
Nevada. DOE, the NRC Staff, the State of Nevada (State), other
potential parties, interested Indian Tribes, and interested units of
local government (collectively Potential Participants) are directed to
submit their responses to this order within the times specified below.
I. Background
On August 31, 2004, this Board granted the motion of the State to
strike DOE certification regarding its production of documentary
material on the grounds, inter alia, that the gaps in its document
production, and the incompleteness of DOE's review of the documents for
claims of privilege, showed that DOE had not made all documentary
material available as required by 10 CFR 2.1003(a). LBP-04-20, 60 NRC
300 (2004). In that decision, we noted that DOE had claimed
approximately one million of its documents were entitled to some form
of privilege and yet had not completed its privilege review for several
hundred thousand of these documents. 60 NRC at 316, 318. Underscoring
the magnitude of the issue, counsel for the State indicated that, given
DOE's numerous claims of privilege, ``we're going to be [before the
Board] thousands of times asking for documents.'' 60 NRC at 328 n.47.
Although our ruling of August 31, 2004 temporarily postponed such
privilege disputes, once DOE re-submits and re-certifies its documents,
the controversies will begin anew.
Even assuming that DOE's pending document production is of the
highest quality, it is now clear that thousands of documents in this
proceeding (whether
[[Page 4155]]
from DOE or other participants) will be subject to various claims of
privilege and that hundreds, if not thousands, of these claims will be
disputed. This threatens to delay the proceeding. But, as we noted in
August, ``a full and fair 6-month document discovery period, where all
of DOE's documents are to be available to the potential parties and the
public, is a necessary precondition to the development of well
articulated contentions and to the Commission's ability to meet the
statutory mandate to issue a final decision within three years.'' 60
NRC at 315. Mindful of the enormous task that looms before us, it is
incumbent on this Board to develop procedures to manage and to resolve
efficiently a very large number of privilege disputes.
II. Regulatory Structure
Development of an efficient plan for managing the privilege
disputes in this proceeding first requires an understanding of the
scope of the types of privilege claims that are available, and of the
existing regulatory and technical structure.
A. Scope of Available Privilege Claims
As we explained in our August decision, the regulations applicable
to the Yucca Mountain proceeding, 10 CFR Part 2, Subpart J, require
that DOE and other Potential Participants make ``all documentary
material'' available. 10 CFR 2.1003(a)(1); see generally 60 NRC at 311.
Documents must be produced electronically and will be placed on the NRC
Licensing Support Network (LSN). The full text and an ``electronic
bibliographic header'' (Header) is required for all documents except
for documents ``(i) for which a claim of privilege is asserted; (ii)
which constitutes confidential financial or commercial information; or
(iii) which constitute safeguards information,'' where only a Header is
required. 10 CFR 2.1003(a)(4)(i)-(iii) (collectively ``privileges'' or
``privileged documents'').\1\
---------------------------------------------------------------------------
\1\ A Header only is also acceptable for a document that is not
suitable for image or searchable full text. 10 CFR 2.1003(a)(3).
---------------------------------------------------------------------------
The scope of the privileges available under 10 CFR 2.1003(a)(4)(i)
is addressed in 10 CFR 2.1006(a), that states:
[T]he traditional discovery privileges recognized in NRC
adjudicatory proceedings and the exceptions from disclosure in Sec.
2.390 may be asserted by potential parties, interested States, local
governmental bodies, Federally-recognized Indian Tribes, and
parties. In addition to Federal agencies, the deliberative process
privilege may also be asserted by States, local governmental bodies
and Federally-recognized Indian Tribes.
The regulation specifies that the Board may, in appropriate
circumstances, deny claims of privilege, order the document produced,
and/or require document production under an appropriate protective
order.
The exemptions from disclosure specified in 10 CFR 2.390 are those
specified in the Freedom of Information Act (FOIA), 5 U.S.C. 552. The
regulation sets forth the general rule that NRC must make all records
and documents available to the public, and the nine FOIA exemptions
from disclosure. These nine exemptions include documents that (1) are
properly classified; (2) relate solely to internal personnel rules and
practices; (3) are specifically exempted from disclosure by a statute
that leaves no discretion on the issue; (4) are trade secrets or
privileged or confidential commercial or financial information; (5) are
interagency or intra-agency memoranda that would not be available by
law to a party other than in litigation;\2\ (6) personnel and medical
files, etc.\3\
---------------------------------------------------------------------------
\2\ This FOIA exclusion is related to, but not identical with,
the deliberative process privilege.
\3\ There is some obvious overlap between the three categories
of documents excluded under 10 CFR 2.1003(a)(4)(i)-(iii) and the
nine FOIA exclusions. For example, section 2.1003(a)(4)(I) excludes
``confidential financial or commercial information,'' whereas
section 2.390(a)(4) (FOIA Exemption 4) excludes ``trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.'' These are not identical.
---------------------------------------------------------------------------
In sum, the Subpart J regulations establish numerous categories of
privileged documents with respect to which the person producing them
need only provide a ``Header.'' These categories include:
(1) The traditional discovery privileges recognized in NRC
proceedings (e.g., the attorney work product privilege and the
attorney-client communication privilege);
(2) Confidential financial or commercial information;
(3) Safeguards information;
(4) The deliberative process privilege information (for
governmental entities); and
(5) The nine FOIA exemptions of 10 CFR 2.390(a).
For each of these privileges, there are specific elements or
requirements that must be met, and the elements vary substantially
depending on the privilege. For example, a person claiming that a
document is protected under the attorney-client communication privilege
generally must establish that the document was (a) to or from an
attorney acting in his or her capacity as an attorney; (b) written
primarily for the purpose of seeking or providing legal advice; and (c)
not shared or disseminated to persons outside of the attorney-client
relationship. On the other hand, in order for a document to qualify
under the deliberative process privilege the person claiming the
privilege generally needs to show that it is pre-decisional,
deliberative, and that an appropriately senior agency official
personally reviewed and specifically identified the documents as
meeting the requirements of the deliberative process privilege.\4\ In
order to determine whether a document properly qualifies for a specific
privilege, the Board must be provided with the facts showing that the
document satisfies all of the elements applicable to the privilege
claimed.
---------------------------------------------------------------------------
\4\ The descriptions of the elements of the attorney-client
communication privilege and the deliberative process privilege are
provided to illustrate their differences, and are not to be
construed as this Board's final interpretation of the elements of
these privileges.
---------------------------------------------------------------------------
B. Content of Electronic Bibliographic Headers
Turning to the prescribed content of the Headers, they do not
appear to provide the parties or the Board with the information
necessary to determine whether a given document satisfies the elements
applicable to the privilege claimed for it. More fundamentally, the
regulations do not require that the Header state that a withheld
document is claimed to be privileged, much less the type of privilege
claimed.\5\ Similarly, there is no requirement that the person
producing the document provide the essential information that would
normally be required in a litigation privilege log, i.e., the facts
relating to the document that represent the elements of each privilege.
``Bibliographic header'' is defined as ``the minimum series of
descriptive fields that a potential party, interested governmental
participant, or party must submit with a document or other material.''
10 CFR 2.1001. But no regulation lists or mandates this ``minimum
series of descriptive fields'' or their contents.
---------------------------------------------------------------------------
\5\ A person may provide only a Header for a document that (a)
is not technically suitable for electronic text display or (b) is
claimed to be privileged. See 10 CFR 2.1003(a)(3) and (4). But the
regulations and guidance do not require the person to state which of
the two reasons justify his or her withholding of the document's
text.
---------------------------------------------------------------------------
The LSN Administrator and the LSN Advisory Review Panel, neither of
which have authority to issue binding regulations, have attempted to
fill this gap by issuing guidance. Guidance document ``LSN Baselined
Design Requirements'' specifies a ``Recommended Participant
[[Page 4156]]
Bibliographic Header Field Structure,'' that suggests that each Header
include fields for items such as: Addressee name, addressee
organization, author name, author organization, comments, descriptors,
document date, document type, and title.\6\ The guidance describes the
``comments'' field basically as a catch-all field that can be used to
explain (a) whether the document was claimed to be privileged and (b)
if so, why.\7\ The guidance document divides the suggested fields into
three categories--mandatory, required if available, and optional--and
the comments field is listed as ``optional.''
---------------------------------------------------------------------------
\6\ LSN Baselined Design Requirements (June 5, 2001), at 17,
Table A, 22-23.
\7\ The guidance document states that the ``comments'' field
should include ``any information not covered in other fields which
the submitter or indexer believes would be of help to identify or
retrieve the document, or to further explain any field entry for the
document * * * This field may include summaries of documents that
are privileged.'' Id. at 17.
---------------------------------------------------------------------------
Although the recommended Header fields help identify a document
(name of author, date, subject), they do not provide the information
necessary to assess whether a document qualifies for any given
privilege. For example, although the recommended Header fields include
the ``addressee name'' and the ``author name,'' they do not provide the
information necessary to determine whether the document qualifies for
the attorney-client communication privilege, i.e., (a) whether the
addressee or author was an attorney, (b) whether the addressee and
author had an attorney-client relationship, (c) whether the document
was written for purposes of requesting or providing legal advice, and
(d) whether the document was shared or disseminated to persons outside
of the attorney-client relationship.\8\ Alternatively, the Header
fields provide no information about whether the document might qualify
for the deliberative process privilege, such as was it pre-decisional
and was it deliberative.
---------------------------------------------------------------------------
\8\ Of course the Board, by inspecting the document, might glean
some or all of this information. But this misses the point, which is
that it is literally impossible for this Board to review
individually 100,000 or a million documents to attempt to determine
what privilege, if any, the document provider is claiming and
whether the document meets the necessary elements.
---------------------------------------------------------------------------
In short, even if a person were inclined to follow the optional
recommendations of the LSN Administrator's non-binding guidance, the
information in the Header fields would be of little assistance in
resolving privilege disputes.
C. Privilege Logs
Privilege logs are the tool employed to manage and to resolve
privilege claims. For example, Rule 26(b)(1) of the Federal Rules of
Civil Procedure states that a party ``may obtain discovery regarding
any matter, not privileged, that is relevant to the claim or defense of
any party'' and further provides:
When a party withholds information otherwise discoverable under
these rules by claiming that it is privileged or subject to
protection as trial preparation material, the party shall make the
claim expressly and shall describe the nature of the documents,
communications, or things not produced or disclosed in a manner
that, without revealing information itself privileged or protected,
will enable other parties to assess the applicability of the
privilege or protection.
Fed. R. Civ. Proc. 26(b)(5). The ``privilege log'' is the mechanism
whereby a party claiming the privilege ``describes the nature of the
documents * * * in a manner that * * * will enable other parties to
assess the applicability of the privilege or protection.'' The log is
generally a chart, listing each document for which a privilege applies,
and providing, in different columns or fields, the information
necessary to assess whether the privilege legitimately applies.
The Commission's general rules of practice for adjudicatory
proceedings support the use of privilege logs. The rules governing
Subpart G proceedings are virtually identical to the above quoted
provisions of Rule 26. See 10 CFR 2.705(b)(1) and (4). Even in Subpart
L proceedings, where discovery is limited to certain mandatory
disclosures, the rules require each party to provide a privilege log--
``a list of documents otherwise required to be disclosed for which a
claim of privilege or protected status is being made, together with
sufficient information for assessing the claim of privilege or
protected status of the documents.'' 10 CFR 2.336(a)(3).
Although the regulations for the Yucca Mountain HLW proceeding do
not incorporate 10 CFR 2.705 or 2.336 (see 10 CFR 2.1001), privilege
logs remain an authorized and necessary tool under Subpart J. This
Board, as the pre-license application presiding officer, is required
and authorized to resolve privilege claims, see 10 CFR 2.1006(b) and
2.1010(b), and possesses all the general powers of a presiding officer,
including the power to manage the process, rule on offers of proof, and
avoid delay. See 10 CFR 2.1010(e) and 2.319.
Privilege logs will vary from case to case.\9\ In many lawsuits,
only a few dozen, or perhaps a hundred documents will be listed on a
privilege log. In most cases, only two privileges are asserted--the
attorney-client communication privilege and the attorney work product
privilege. In these typical cases the privilege logs will be short and
relatively simple. In other cases, privilege logs are larger and more
complicated. For example, in the tobacco claims litigation involving
massive numbers of documents, the court issued a detailed case
management plan and procedure for resolving discovery and privilege
disputes.\10\ Likewise, in FOIA cases, where there are nine FOIA
exemptions, rather than the two traditional privileges, the logs may be
more complicated because each type of FOIA exemption has its own sub-
elements. See Vaugh v. Rosen, 484 F.2d 820 (DC Cir. 1973). Certainly in
any case involving a significant number of privileged documents, it is
critical to establish at an early point the information that the
privilege log must contain if there is to be any hope that the case is
to proceed fairly and expeditiously.\11\
---------------------------------------------------------------------------
\9\ See Robert J. Nelson, The Importance of Privilege Logs, The
Practical Litigator, 27, 29 (Mar. 2000). See also Heavin v. Owens-
Corning Fiberglass, No. 02-2572-KHV-DJW, 2004 U.S. Dist. LEXIS 2265
*1, *24 (D. Kan. Feb. 3, 2004) (describing what a privilege log
should include ``at a minimum''); Hill v. McHenry, No. 99-2026-CM,
2002 U.S. Dist. LEXIS 6637 *1, *8 (D. Kan. Apr. 10, 2002) (listing
requirements of satisfactory privilege log).
\10\ United States v. Phillip Morris, Inc., Ninth Case
Management Order, 99-CV-2496, 2001 U.S. Dist. LEXIS 12603 *1 (D.D.C.
Mar. 27, 2001).
\11\ As one commentator has noted that ``it is in the producing
party's interest to provide the absolute minimum amount of
information about the document on the privilege log; downplay the
potential importance of the document, disguise the weaknesses
associated with the privilege or work product claim; and ultimately
to delay producing or never produce the document.'' Robert J.
Nelson, The Importance of Privilege Logs, The Practical Litigator,
27, 29 (Mar. 2000). To the contrary, it is in the public interest in
this case, as well as the interest of sound judicial management,
that the privilege logs contain all necessary information, so that
privilege disputes can be minimized and promptly resolved.
---------------------------------------------------------------------------
III. Order
Based on the foregoing, the Board hereby orders DOE, the NRC Staff
and the State, together with any other Potential Participants who may
wish to respond, to meet, either telephonically or in person, within 20
days of the publication of this order in the Federal Register, for the
purpose of developing and agreeing on (a) a joint proposed format for
privilege logs and (b) associated procedures for resolving
[[Page 4157]]
privilege disputes. The joint proposed format for the privilege logs
shall cover all categories of privilege or protected status claims
available under Subpart J and relevant to this proceeding. See
II.A.(1)-(5) above. For each category of claimed privilege (e.g.,
attorney-client communication, deliberative, Privacy Act), the joint
proposed format for that particular privilege log should specify and
define the sub-elements of information that must be provided in order
to enable other parties to assess the applicability of the privilege or
protection without revealing the privileged or protected information
itself.\12\
---------------------------------------------------------------------------
\12\ For example, DOE and its litigation support contractor,
CACI Inc., are using computer software to screen documents for
potential claims of privilege as well as teams of people reviewing
and evaluating documents for privilege. See 60 NRC at 318. This
software, and DOE's instructions to these individuals, presumably
identify the elements of each category of privilege that DOE is
claiming. The NRC, which made its documents available on the LSN on
September 30, 2004, presumably developed similar criteria and went
through a similar process in evaluating which documents qualified
for a privilege.
---------------------------------------------------------------------------
The jointly agreed procedures associated with privilege claims and
disputes shall be based upon the regulatory requirements and procedures
of Subpart J and provide any suggested additional measures or
procedures that will avoid, or expedite the resolution of, privilege
disputes.\13\ For example, the procedure may call for additional
conferences between the parties, or for a mechanism for the redaction
of small amounts of ``privileged information'' from an otherwise
unprivileged document, in lieu of the blanket exclusion of a document.
To the maximum extent possible, the privilege logs and procedures
should encourage the prompt resolution of privilege disputes by the
parties themselves. The proposed procedures should distinguish between
those privileges that are absolute, and those that are qualified. The
proposed procedures shall maximize the effective use of the LSN.
---------------------------------------------------------------------------
\13\ Appointment of a discovery master, authorized under 10 CFR
2.1018(g), merely pushes the discovery disputes to another level
and, therefore, would not appear to be a panacea.
---------------------------------------------------------------------------
Not later than 40 days after the publication of this order in the
Federal Register, DOE, the NRC Staff, and the State shall submit a
jointly-agreed proposed case management order to the Board that
establishes a proposed format for a privilege log and specifies
privilege claim related procedures for this proceeding. They shall
allow any other Potential Participant the opportunity to negotiate, to
endorse and/or to join in the joint submission. In addition, such other
Potential Participants may develop and submit their own joint or
individual alternative proposed case management orders on the subject
of privilege log formats and procedures.
If DOE, the NRC Staff, and the State are unable to agree upon a
joint proposed case management order prescribing the format for a
privilege log and associated procedures, then, 50 days after the
publication of this order in the Federal Register, each of them, and
any other Potential Participant shall submit separate proposed case
management orders on this subject. In such case, 65 days after
publication of this order in the Federal Register, each person or
entity filing a proposed case management order shall file a supplement
identifying and explaining the material differences between its
proposed order and the other proposed orders.
It is so ordered.
January 24, 2005, Rockville, Maryland.
The Pre-license Application Presiding Officer Board.
Thomas S. Moore,
Chairman, Administrative Judge.
Alan S. Rosenthal,
Administrative Judge.
Alex S. Karlin,
Administrative Judge.
[FR Doc. 05-1575 Filed 1-27-05; 8:45 am]
BILLING CODE 7590-01-U