[Federal Register Volume 70, Number 18 (Friday, January 28, 2005)]
[Pages 4154-4157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1575]



[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

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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 

    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 

    \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 

    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

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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 

    \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]