Opinion
1:18-cv-00459-SAG
07-18-2023
STATE OF MARYLAND, Plaintiff, v. EXXON MOBIL CORPORATION, et al., Defendants.
MEMORANDUM & ORDER
Stephanie A. Gallagher, United States District Judge.
Defendants have filed a motion to compel certain documents withheld by the State of Maryland under the deliberative process privilege. ECF 725. The Parties have provided accompanying briefing. See ECF 725-1; ECF 725-2; ECF 725-3. This Court has reviewed the filings and finds that no hearing is necessary for Defendants' motion to compel documents regarding deficient privilege log entries. See ECF 725-1 at 3.
This Court will hear argument and defers judgment on Defendants' remaining issues raised by their motion to compel, i.e., information related to regulation of underground storage tanks, information related to potable water sampling and testing, information relevant to defense of natural resource damages claims, and procedural disputes with depositions.
The State's privilege log entries are “facially insufficient unless they both specify a particular policy or issue to which the draft document relates and identify the document's function and significance in [the State's] decisionmaking process.” In re Methyl Tertiary Butyl Ether (MTBE) Prod. Liab. Litig., 898 F.Supp.2d 584, 592 (S.D.N.Y. 2012).
Upon review of the privilege log entries challenged as “insufficient” in Exhibits 9 and 10, see ECF 725-1 at 40-97, this Court finds that the following privilege log entries do not adequately identify the decision at issue, and therefore directs Plaintiff to produce the following documents:
Exhibit 9 (Focus Site Privilege Log)
| P.L. No. | Privilege Basis |
| 12 | Internal memorandum from Paul Certeza to file through Andrew Miller, dated Jan. 17, 2013, analyzing case status |
| 13 | Internal memorandum from Paul Certeza to file through Andrew Miller, dated Jan. 17, 2013, analyzing case status |
| 2661 | Email requesting guidance regarding content of draft response to Exxon's request |
| 2662 | Emails discussing response to Exxon's request, discussing issues still in need of resolution |
| 2663 | Emails requesting and proving guidance regarding content of draft response to Exxon's request |
| 2664 | Emails discussing response to Exxon's request, discussing issues still in need of resolution |
| 2665 | Emails discussing response to Exxon's request, discussing issues still in need of resolution |
| 2745 | Emails discussing initial assessment of SHA's latest update, asking for input and providing suggestions |
| 2746 | Email providing initial assessment of SHA's latest update, and asking for input |
Exhibit 10 (Non-Site-Specific Privilege Log)
| P.L. No. | Privilege Basis |
| 133 | Partially illegible handwritten notes describing MDE deliberations and persons to contact for site-specific issues |
| 136 | Largely illegible handwritten notes, comments, and questions on issues unrelated to MTBE |
| 141 | Largely illegible handwritten notes on site-specific issues and mention of planning, with no mention of MTBE 403 MDE/WAS OCP 2009 Proposed Regulation Summary, August 19, 2009 |
| 1144 | Draft memo from Waste Management Administration discussing potential legislation for 2007 that the administration might want to propose or support with no discussion of the risks or benefits of MTBE |
| 1146 | Draft document discussing MDE's preliminary internal positions re pending bills in the General Assembly with no discussion of the risks or benefits of MTBE |
| 1982 | Document describing legislative issues for MDE in 2002, including recommendations under consideration, analysis of the pros and cons of certain legislation, and opinions on the necessity of certain legislation |
| 1983 | Document describing legislative issues of relevance to MDE in 2002, including bills being considered by MDE for proposal, with no discussion of risks or benefits of MTBE |
| 1985 | Draft document describing MDE's legislative proposals for the 2007 legislative session, including rationale for such proposals with no discussion of the risks or benefits of MTBE |
| 2018 | Briefing memo from ARMA for January 7, 1999 meeting with Secretary Nishida, describing legislative, litigation, and regulatory issues requiring the Secretary's attention or decision, with no discussion of risks or benefits of MTBE |
In addition, Plaintiff is directed to specify the relevant issue (e.g., related statute or concern) for entries regarding “potential enforcement action[s]” for the following Focus Site Privilege Log (Exhibit 9) entries: P.L. Nos. 2196, 2198, 2199, 2200, 2201, 2202, 2203, 2205, 2206, 2211, 2213, 2214, 2215, 2216, 2217, 2218, 2219, 2220, 2621, 2628, 2653, 2654, 2724, and 2736.
For these reasons, it is this 18th day of July, 2023, ORDERED that the State produce the documents identified in the above two tables, and specify the relevant issue for the above listed entries to Defendants. The remaining privilege log entries challenged by Defendants are sufficient.