Opinion
No. 1:02CV00334
November 5, 2002
ORDER OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on several motions filed by various parties in this action. The motions are as follows: (1) a joint motion for a protective order filed by plaintiff and defendants the United States Environmental Protection Agency and Administrator Christine Todd Whitman (collectively "the EPA"), Sipcam Agro USA Inc. (Sipcam), and Drexel Chemical Company (Drexel), (2) motions for a protective order and objections to release of records filed by Sipcam, Drexel, and the EPA, (3) a response to and motion to strike the objection of Cedar Chemical Corporation (Cedar) filed by Sipcam, and Sipcam's response to the objections of Cedar and of the EPA, and (4) a request for the production of certain portions of the Administrative Record filed by plaintiff.
The case involves a dispute between plaintiff and the EPA over the cancellation of certain registrations held by plaintiff for the pesticide metolachlor and the EPA's subsequent granting of similar registrations to defendants Sipcam, Drexel, Cedar, and TRI Chemicals, Inc. (TRI). The decisions regarding the contested registrations created an Administrative Record and disputes over that record have led to the filing of the motions named above.
Although the underlying subject matter of the case is not particularly important to understanding the motions at issue, the procedural history leading to their filing is. On July 29, 2002, a scheduling order was entered ordering the parties to confer on a protective order which would allow the EPA to serve copies of the Administrative Record on the parties according to that order. If no agreement was reached by a certain time, the EPA could serve the record in redacted form with respect to confidential business information or proprietary information. The parties were then given deadlines to object to that record, submit their own proposed protective orders, and move to supplement the record.
In accordance with the process set out in the Scheduling Order, plaintiff, the EPA, Sipcam, and Drexel filed a joint motion for a protective order with the Court (docket no. 59). The proposed order attached to the motion allowed for certain levels of protection for information which constituted confidential business information or proprietary information of the parties and which was released during this action. However, paragraph 15 of the proposed Record from being released even under the parameters set out in the protective order. That information involved certain highly confidential information submitted to the EPA which the parties deemed irrelevant to plaintiff's lawsuit. Cedar and TRI did not participate in the discussions that led to the filing. However, copies of the document were sent to them and they voiced no objection.
Plaintiff has reserved the right to contest the designation if it determines such action to be necessary, but agrees to the withholding of the information at the current time.
As a matter of fact, with one exception which will be discussed later, cedar and TRI have not participated in this litigation at all and neither party has had counsel make an appearance on its behalf. Further, plaintiff has currently moved to dismiss TRI on the grounds that TRI has transferred its registrations for metolachlor to cedar.
Following the filing of the joint motion for a protective order, but before the motion was acted upon, the EPA apparently served the parties with copies of the Administrative Record with redactions. Then, all parties except TRI filed pleadings responsive to the proposed record. Drexel filed an objection (docket no. 61) to the release of the documents listed by it in paragraph 15 of the protective order. Cedar filed a defective objection (docket no. 62) to the release of any documents containing its confidential business information. Sipcam filed a motion for a protective order (docket no. 63) which asked that an order protecting its information be entered in the event that the joint protective order was not signed by the Court. The EPA filed an objection (docket no. 64) stating that it opposed the release of Doane Marketing Research, Inc. (Doane). (The EPA allegedly has a contract with Doane not to release certain information without Doane's written consent.) Finally, plaintiff filed an objection (docket no. 65) to certain confidential information being released without being designated as confidential pursuant to the proposed protective order.
After the filing of the objections, two parties filed responses to the objections which the Court must now address. Sipcam filed a response and motion to strike (docket no. 67) Cedar's objection because the objection was signed by Cedar's president and CEO, Yehuda Yoked, rather than an attorney. Also, plaintiff filed a response (docket no. 72) to the objections of Cedar and the EPA. That response adopts Sipcam's arguments regarding Cedar's objection, argues that Cedar's objection is also meritless, and asks that the EPA produce the Doane documents set out in the EPA's objections as well as additional documents which the EPA withheld from the Administrative Record even though it did not list them in its objection.
This document is not listed as an outstanding motion on the docket sheet. However, it clearly is one and will be dealt with by the court.
Finally, due to renumbering in the Administrative Record, plaintiff, the EPA, Sipcam, and Drexel submitted an updated motion for a protective order (docket no. 68). According to the movants, this filing supersedes their previous joint motion, but makes no named in the proposed order.
Discussion
The Court can easily dispose of most of the motions and controversies before it. First, the Court has reviewed the proposed protective order submitted by plaintiff, the EPA, Sipcam and Drexel. The Court sees no problems with the order and no objections to it have been filed. Therefore, the Court will grant the motion for a protective order and sign the proposed order submitted by the parties. This will moot Sipcam's motion for a protective order and that motion will be denied for being moot. This also moots Drexel's objections (docket no. 61).
The Court can also easily address Sipcam's and plaintiff's requests that Cedar's objection be stricken. As those parties point out, Cedar's objection was signed by Yehuda Yoked, who indicates that he is Cedar's president and CEO. There is no indication that he is an attorney admitted in this Court.
The provisions of 28 U.S.C. § 1654 govern the appearance of parties in federal court. Parties may appear personally or by counsel. However, the statute has been construed to permit parties to only represent their own rights and interests and not the rights and interests of others or of organizations. Thus, a lay person may not represent a corporation, partnership, estate, minor, incompetent, or organization. Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997); Eagle Associates v. Bank of Montreal, 926 F.2d 1305, 1309 (2d Cir. 1991); Cheung v. Youth Orchestra Foundation of neither corporate officers nor stockholders may appear on behalf of a corporation. Eagle Associates, 926 F.2d at 308-309 (collecting cases); Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed. Cir. 1983). It also means that Mr. Yoked cannot represent Cedar and cannot file documents on its behalf with the Court. For this reason, Sipcam's and plaintiff's motions regarding Cedar's objection are granted and the document (docket no. 62) is stricken from the record.
The two remaining controversies before the Court are plaintiff's response to the EPA's objection to the Administrative Record and plaintiff's request that certain other documents withheld by the EPA be released into the Administrative Record.
Turning first to the EPA's objection, the EPA states it will not release documents containing Doane's information without written consent from Doane. The EPA has no problem with releasing the documents in principle and has represented to plaintiff that it intends to get Doane's consent. It has simply not yet done so. Plaintiff states that it has dealt with Doane in similar situations and that Doane normally gives permission within hours of a request. Plaintiff complains that the EPA has dragged its feet in procuring the necessary permission despite knowing for months that the permission was needed.
The problem concerning the Doane information appears to be easily solved. The EPA has said that it will get Doane's permission, now it must do so. Further, plaintiff has indicated it is. Therefore, the EPA must, within ten days of the entry of this Order, (1) obtain Doane's consent to release the documents or else invite Doane to intervene in this action for the sole purpose of protecting its documents, (2) if the documents are obtained, release the information in those documents into the Administrative Record, and (3) file an affidavit with this Court stating that these things have been done. Should Doane fail to give its permission despite a timely, good faith request from the EPA, any party may file a motion to have the documents released despite Doane's lack of permission. (Said motion should be served on Doane as well as the parties.)
Whether the information should be openly placed into the Administrative Record or placed in under some level of protection pursuant to the joint protective order is not clear, but is not an issue before the court. The parties should be able to work this matter out for themselves.
Plaintiff contends in its response to the EPA's objection that the EPA's agreement with Doane is not a sufficient reason to withhold the documents. However, it provides no authority for this proposition.
In addition to the documents listed in its objection filed with this Court, the EPA has also withheld additional documents from the Administrative Record. Plaintiff addresses at least three such categories of documents in its response and asks that they be released.
The first category is documents labeled as CBI (confidential business information) or otherwise confidential. According to plaintiff, the EPA has withheld these documents and will withhold them despite the joint protective order. Although Syngenta, under the terms of the protective order, the EPA has still informed plaintiff that it wants a court order before releasing them. Further, the EPA has not taken any position on whether such an order should issue. Given the fact that plaintiff seeks the information, no party who has made an appearance in the case opposes its release, and the protective order is now in place to shield the parties involved from damage, the Court will order the EPA to release the documents described as CBI or other confidential information. This release should be done under the terms of the joint protective order at the highest security level which is appropriate.
To the extent cedar may oppose the release, its objection has been stricken.
The second type of document withheld by the EPA consists of only attachment 5 to document 157 in the Administrative Record. The EPA initially withheld that document by asserting the deliberative process privilege. However, in responding to the filing of plaintiff's response, the EPA has stated it is waiving that privilege and will produce the document.
This document is also a document containing Doane information. The court's prior instructions regarding the Doane documents will apparently apply to this document.
The final set of documents withheld by the EPA consists of two documents indexed as documents 169 and 214 in the index of the Administrative Record. These have been described by the EPA as legal memoranda from the EPA's Office of General Counsel to the "Cancellation of Syngenta's Metolachlor End Use Products." (EPA Brf., Ex C) As to these documents, the EPA has asserted attorney-client privilege and attorney work product privilege. Plaintiff asserts that the EPA has not met its burden of showing that the claims of privilege are justified and requests that the documents be released.
The attorney-client privilege arises when a client consults "an attorney for the purpose of securing a legal opinion or services and not `for the purpose of committing a crime or tort' and in connection with that consultation has communicated information which was intended to be kept confidential." In re Grand Jury Proceedings, 727 F.2d 1352, 1355 (4th Cir. 1984), citing McCormick, Evidence § 91, pp. 187-88 (Cleary ed. 1972). If these circumstances exist, the privilege then covers both the confidential communications to the attorney and any reply by the attorney based on the confidential information. Tax Analysts v. Internal Revenue Service, 117 F.3d 607, 618 (D.C. Cir. 1997); Parkway Gallery Furniture, Inc. v. Kittenqer/Pennsylvania House Group, Inc., 116 F.R.D. 46, 49 (M.D.N.C. 1987). However, the privilege is disfavored and must be narrowly construed. In Re Grand Jury Proceedings at 1355. Also, the burden of proving that the privilege applies to a piece of evidence rests with the party asserting the privilege. Hawkins v. Stables, 148 F.3d 379, 383-384 (4th Cir. 1998); Parkway, 116 F.R.D. at 50, agency and the attorney can be an agency lawyer. Tax Analysts at 618. Further, simply seeking legal guidance in dealing with requests from parties outside the agency is not sufficient. The information given to the attorney must be "new or confidential information concerning to [a]gency." Id. at 619 (emphasis in original). Communications which simply transmit information from third parties and seek advice on how the agency should act are not covered by the attorney-client privilege and neither are the opinions rendered by the agency attorneys in response to such inquiries. Id. The person communicating information to the attorney must have intended for it never to be disclosed outside the agency. Evans v. Atwood, 177 F.R.D. 1, 5 (D.D.C. 1997).
Here, the only evidence that the EPA has submitted in support of its privilege claims is an affidavit from Kevin Lee, one of its attorneys. That affidavit certainly establishes some elements of attorney-client privilege, but not all. Lee states that the memoranda in question were prepared in response to requests for legal advice from EPA personnel and that there was no intent to commit a crime. (Lee Aff., ¶ 4) Lee also notes that the EPA has never waived its claims of privilege as to the memoranda. (Id., ¶ 11)
Unfortunately for the EPA, Lee does not establish the confidentiality element of attorney-client privilege. He does state that the memoranda were "prepared in part based on information provided by OPP staff members in a confidential setting 6). Although this rules out concerns about the possibility of third parties being privy to the communications that led to the memoranda, it does not show that the information shared was confidential information or, more importantly, that it was the EPA's confidential information. The statement also shows that the memoranda were prepared only in part based on the information supplied by the EPA employees. This would necessarily mean that parts of the memoranda were based on other information. No attempt has been made by the EPA to redact only the portions of the memoranda that would reveal the allegedly confidential communications. For both of these reasons, the EPA has failed to meet its burden of proving that the communications between its employees and the attorneys who prepared the memoranda were confidential so as to qualify the memoranda for the attorney-client privilege. Under similar circumstances, other courts have ordered government agencies. See Tax Analysts, supra; Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980) (conclusory assertions of privilege not enough where court cannot tell that all elements of privilege are met); Mead Data Center, Inc. v. United States Department of the Air Force, 566 F.2d 242 (D.C. Cir. 1977) (same). This Court sees no reason to deviate from the results in those cases.
Indeed, given the circumstances of the case, it may well not have been. More likely the communications would have involved information supplied by the corporate parties as part of their registrations and applications, along with questions of how the law applied to that information. If so, this would not be confidential information of the EPA. Schlefer v. United States, 702 F.2d 233 (D.C. Cir. 1983) (communications using information provided to agency by outsiders not protected by attorney-client privilege).
The Court realizes that the EPA has had only one brief and exhibit with which to establish its claims of privilege. Thus, it has not responded to plaintiff's reply brief which points out the inadequacies of the EPA's presentation. However, this situation is of the EPA's own making because it failed to include the documents in a privilege list when it objected to the discovery and, even more importantly, the EPA failed to seek a protective order to prevent their release. Brittain v. Stroh Brewery Co., 136 F.R.D. 408, 412-413 (M.D.N.C. 1991) (discussing the necessity for timely filing of protective orders) Had the EPA done so, it could have set out its reasons for claiming privilege and filed a supporting affidavit. If plaintiff responded, it could then file a reply to give any further necessary information. Because the EPA failed to follow such a course, the issue was really only raised in plaintiff's request for the release of documents. This left the EPA with only one chance to respond and allowed plaintiff to have the last word in its reply.
Also, the EPA has offered to present the memoranda for in camera review if the Court wishes. In so doing, the EPA misapprehends the nature of its duty. First, as mentioned above, the EPA failed to file a timely motion for a protective order. Second, a party does not satisfy the requirements for obtaining a protective order by simply asking the Court to review documents in camera. It is highly unlikely that the nature of the protected matter is so readily apparent upon the face of the document that an uninitiated observer will immediately be able to tell that the information is and remains confidential. Pete Rinaldi's Fast Foods Inc. v. Great American Ins. Companies, 123 F.R.D. 198, 203 (M.D.N.C. 1988). Rather, the party must present any in camera matters in a reviewable form, such as with a Vaughn index. Id. This requires that each confidential document be itemized on a list. For each document, if only a part is confidential, a redacted document should be produced. For each document which is redacted in whole or part, there should be given a general factual summary of the document's redacted content and specific factual details supporting the justification for the confidential part being redacted. Id. With respect to the redacted confidential matters, they may be submitted in unredacted form in camera along with an additional affidavit, if necessary, should the justification itself require the revealing of confidential information. Id. A Vaughn index which gives boilerplate conclusions applying to all documents and does not connect the information withheld to specific statements of law and fact is simply insufficient and inadequate. Tax Analysis v. I.R.S., 97 F. Supp.2d 13, 21-22 (D.D.C. 2000), aff'd, 294 F.3d 71 (D.D.C. 2002). Consequently, the Court rejects the EPA's offer as untimely and inadequate.
Having failed to meet its burden in showing that the contested memoranda can be withheld due to attorney-client privilege, the EPA still has its second argument, which is that the documents are attorney work product and can be withheld on that basis. In order created by attorneys because of or in anticipation of litigation. National Fire Insurance Co. of Pittsburgh, Pa. v. Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir. 1992). Documents prepared in the ordinary course of business or pursuant to regulatory requirements are not classified as attorney work product. Id. As with attorney-client privilege, the burden is on the EPA to demonstrate that the privilege applies and the privilege must be narrowly construed. Pete Rinaldi's Fast Foods, Inc. v. Great American Ins. Companies, 123 F.R.D. 198, 201 (M.D.N.C. 1988). If the EPA meets this burden, it can then receive absolute protection only for the portions of the document containing the attorney's "mental impressions, conclusions, opinions, or legal theories . . . concerning the litigation." Fed.R.Civ.P. 26(b)(3). All other portions of the documents may still have to be produced if the opposing party shows "substantial need." Id.
As with its claims of attorney-client privilege, the EPA has failed to back up its assertions with timely and sufficient evidence. See nn. 8 9. Here, it has failed to show that the memoranda were prepared because of or in anticipation of litigation. Lee's affidavit states that the memoranda were prepared at a time when litigation had already been filed concerning the metolachlor registrations and more was likely. (Lee Aff., ¶ 7) However, it fails to state the they were prepared because of the litigation. The EPA, and indeed every government agency, is constantly involved in litigation and in preparing documents. The processed may or may not be related in any particular case. Therefore, it is not enough to say that a document about a certain subject was preparedat a time when litigation concerning that or a similar subject was pending or could be foreseen. Instead, the EPA must show that the document was prepared because of the litigation. It has not done so and the Court will not treat the documents as attorney work product. Plaintiff's request to have the memoranda produced in the Administrative Record is granted. IT IS THEREFORE ORDERED that Sipcam Agro USA's motion to strike Cedar Chemical's Corporation's objection (docket no. 67), plaintiff, Drexel Chemical Company, Sipcam AGRO, USA's, and the EPA's joint motion for a protective order (docket no. 68), and plaintiff's response to objections and request for order requiring production (docket no. 72) be, and the same hereby are, granted. Accordingly, Cedar Chemical Corporation's objection (docket no. 62) is stricken from the record and the EPA must release the contested portions of the Administrative Record under the terms and conditions set out in the body of this Order.
Once again, to the extent that the information in the memoranda may fall under categories of information protected by the joint protective order, the EPA should comply with that order in making its release.
IT IS FURTHER ORDERED that Sipcam Agro USA's motion for a protective order (docket no. 63) be, and the same hereby is, denied for being moot.