In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation

898 F. Supp. 2d 584, 2012 WL 1624020
CourtDistrict Court, S.D. New York
DecidedMay 8, 2012
DocketMaster File No. 1:00-1898; MDL No. 1358 (SAS); No. M21-88
StatusPublished
Cited by3 cases

This text of 898 F. Supp. 2d 584 (In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Methyl Tertiary Butyl Ether ("MTBE") Products Liability Litigation, 898 F. Supp. 2d 584, 2012 WL 1624020 (S.D.N.Y. 2012).

Opinion

OPINION AND ORDER

SHIRA A. SCHEINDLIN, District Judge:

I. INTRODUCTION

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.

[588]*588II. BACKGROUND

In early 2011, defendants moved to compel the production of documents that NJDEP claimed were protected under the deliberative process privilege.1 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.2 However, I agreed with defendants that NJDEP’s existing privilege log was “insufficiently detailed” and that its entries were “bare-boned.”3 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.”4

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.5 Defendants requested that NJDEP revise the privilege logs by January 27, 20126 and raised the issue at the January 20, 2012 status conference.7 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.”8 To provide NJDEP with additional guidance, I suggested that it read two decisions of mine dealing with deliberative process9S.E.C. v. Collins & Aikman Corp.,10 and Davis v. City of New York.11 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.”12

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.13 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.14

III. APPLICABLE LAW

A. New Jersey’s Deliberative Process Privilege

State law determines the existence and scope of privileges in diversity [589]*589actions.15 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.”16 The privilege seeks to “ensure free and uninhibited communication within governmental agencies so that the best possible decisions can be reached”17 and also “to ensure that an agency ‘is judged by policy adopted, not policy merely considered.’ ” 18

To qualify as privileged, a document must be both “pre-decisional” and “deliberative.”19 Pre-decisional is defined as “generated before the adoption of an agency’s policy or decision.”20 Deliberative is defined as “containing] opinions, recommendations, or advice about agency policies.”21 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.”22 “Once the threshold requirements have been proved by the government, the privilege is invoked, resulting in a presumption of confidentiality because the ‘government’s interest in candor is the preponderating policy and ... the balance is said to have been struck in favor of non-disclosure.’ ”23

B. Federal Privilege Law

Whereas “ ‘the substantive question of privilege is decided by [state] law,’ the procedural requirements for asserting a privilege in federal court are governed by federal law.”24 Under Rule 26, a party asserting a privilege must “describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”25 Thus, a party asserting New Jersey’s deliberative process privilege in federal court must produce a “privilege log that identifies each document with the specificity needed to demonstrate that the protected communication was predecisional and deliberative.”26

IV. DISCUSSION

As a preliminary matter, on May 1, 2012, I ordered plaintiffs to produce a number of documents to defendants following an in camera review during which I determined that those documents were not pre-decisional and/or not deliberative. [590]*590Two of the documents that I ordered defendants to produce — NJDEP-MTBE-NSSD2PR-00215 and NJDEP-ESI00010559-10564 — are among the seventy-five that defendants now challenge. Having already ordered plaintiffs to produce these two documents, I do not address the sufficiency of those entries.

Defendants separate the seventy-three remaining entries into three categories: (1) entries which inadequately identify the decision or policy at issue; (2) entries which inadequately describe “draft” documents; and (3) entries which make clear that the documents were sent to a third party outside NJDEP.27

A. Entries Which Defendants Challenge as Inadequately Identifying the Decision or Policy at Issue

In order to establish that a document is “pre-decisional” and thus potentially protected by the deliberative process privilege, NJDEP “must show that the material was prepared to assist the agency in the formulation of some specific decision.”28 Thus, privilege log entries are inadequate unless they “ ‘demonstrate that ... the document for which ... privilege is claimed related to a specific decision facing the agency.’ ”29

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Bluebook (online)
898 F. Supp. 2d 584, 2012 WL 1624020, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-methyl-tertiary-butyl-ether-mtbe-products-liability-litigation-nysd-2012.