U.S. v. Philip Morris USA, Inc.

Full title: UNITED STATES OF AMERICA, Plaintiff, v. PHILIP MORRIS USA, INC., f/k/a…

Court: United States District Court, D. Columbia

Date published: Aug 30, 2004

Civil Action No. 99-CV-2496 (GK) (D.D.C. Aug. 30, 2004)

Opinion

Civil Action No. 99-CV-2496 (GK).

August 30, 2004

REPORT AND RECOMMENDATION # 170 OF THE SPECIAL MASTER [5^th EOP/PRA Privilege Challenge]

RICHARD A. LEVIE, (Ret.), Special Master

Before the Special Master is Joint Defendants'¹ Fifth Motion to Compel Certain Documents Listed on Plaintiff's Executive Office of the President and Presidential Records Act Privilege Logs. Upon consideration of the pleadings and exhibits filed in support of and opposition to the Motion, and upon an in camera review of the Challenged Documents at issue, the Special Master recommends that the Court grant in part and deny in part Joint Defendants' Motion.

1 Joint Defendants are Philip Morris USA, Inc.; Altria Group, Inc.; R.J. Reynolds Tobacco Company; Brown Williamson Tobacco Corporation (individually and as successor by merger to the American Tobacco Company); Lorillard Tobacco Company; British American Tobacco (Investments) Ltd.; The Council for Tobacco Research, U.S.A., Inc.; and The Tobacco Institute.

I. Background

Joint Defendants originally identified for potential challenge 500 documents on Plaintiff's EOP/PRA privilege logs. See Mot. Ex. 1 (April 29, 2003 Letter from Mr. Redgrave to Mr. Klontz). The parties met and conferred on May 30 and June 3, 6, 10, 13, 17, 20 and 24, to narrow the issues related to the challenge.See Mot. Exs. 3-10 (Meet Confer Tr.). The meet and confer process on the fifth EOP/PRA privilege challenge closed on August 4, 2003. See Mot. Ex. 11 (July 29, 2003 Letter from Mr. Nierengarten to Mr. Klontz).

Of the original 500 documents identified for challenge, Joint Defendants' Motion challenges the validity of Plaintiff's claims of privilege on 360 of the remaining documents.² Plaintiff claims the deliberative process privilege for all documents except for one,³ and claims the presidential communications privilege for 134 documents. Gonzales Decl. Ex. B. Plaintiff also claims the attorney-client privilege for eight documents.⁴

2 Of the documents challenged, Plaintiff has not offered Declarations officially asserting privilege claims for the following documents: 1 (PRA079-0013-0013); 3 (PRA079-0029-0029); 4 (PRA079-0011-0013); 5 (PRA079-0114-0114); 9 (PRA079-0156-0159); 10 (PRA079-0167-0167); 15 (PRA079-0275-0277); 21 (PRA079-0344-0344); 22 (PRA079-0348-0348); 23 (PRA079-0352-0352); 27 (PRA079-0390-0390); 29 (PRA079-0396-0396); 32 (PRA079-0406-0406); 37 (PRA172-4086-4087); 70 (PRA172-4402-4402); 146 (PRA172-4847-4847); 147 (PRA172-4860-4860); 148 (PRA172-4861-4861); 151 (PRA172-4876-4877); 203 (PRA181-0001-0002); 263 (PRA181-0534-0536); 367 (PRA181-1372-1373); 393 (PRA181-1670-1674); 396 (PRA181-1728-1731); 437 (PRA181-2176-2176); 461 (PRA181-2347-2347). The Special Master recommends that the claims noted on Plaintiff's privilege log be deemed waived, and that Plaintiff be ordered to produce these documents to Joint Defendants if it has not already done so.

3 Plaintiff claims only the presidential communications privilege for Challenged Document 215 (PRA181-0181-0199).

4 Plaintiff claims the attorney-client privilege for Challenged Documents 30 (PRA079-0397-0397); 54 (PRA172-4187-4193); 165 (PRA172-4944-4944); 167 (PRA172-4948-4954); 191 (PRA172-5180-5182); 241 (PRA181-0453-0455); 481 (PRA181-2474-2475); and 490 (PRA181-2521-2523).

In support of its claims of privilege, Plaintiff offers the Declarations of Augustine Smythe, on behalf of the Executive Office of the President (EOP), Office of Management and Budget (OMB);⁵ Patrick Locke, on behalf of the OMB;⁶ Bruce Reed, former Assistant to the President for Domestic Policy and Director of the Domestic Policy Council;⁷ Elizabeth M. Brown, former Counsel to the Vice President;⁸ Alberto Gonzales, on behalf of the Office of the President;⁹ and John K. Veroneau, on behalf of the Office of the United States Trade Representative.¹⁰

5 Opp. App. 2.

6 Opp. App. 3.

7 Opp. App. 4.

8 Opp. App. 5.

9 Opp. App. 6.

10 Opp. App. 7.

II. Arguments of the Parties and Preliminary Observations

As Joint Defendants note, "the parties' positions and arguments regarding the legal standards for the deliberative process privilege, presidential communication privilege, attorney client privilege, and work product doctrine are well known." Defs.' Mem. in Supp. at 2. So too are the legal standards in this case. Thus, the Special Master will make only a few preliminary observations.

First, Joint Defendants assert that the presidential communications privilege only applies to "quintessential and non-delegable Presidential powers or decisionmaking." Reply at 15. They assert that "[h]ad the communications involved such powers or decision-making, then even in the absence of sufficient guarantees by the Government, the Court could reasonably infer that the documents must relate to presidential decisionmaking. Why? Because only the President can make a final decision concerning a quintessential and non-delegable Presidential power." Id., citing Judicial Watch, Inc. v. United States Dep't of Justice, 259 F.Supp.2d 86 (D.D.C. 2003); In re Sealed Case, 121 F.3d 729, 752-53 (D.C. Cir. 1997) (emphasis in Reply Mem.).

Plaintiff asserts that Joint Defendants' interpretation ofJudicial Watch and In re Sealed Case is incorrect, claiming that, in Judicial Watch,

[i]n discussing the non-delegable Presidential power involved in that case, the Court was not attempting to impose an additional limitation on the scope of the privilege enunciated in In re Sealed Case; quite the contrary, the Court was explaining its justification for applying the privilege in a manner that might have seemed inconsistent with the admonition in In re Sealed Case that the privilege cannot be extended beyond the White House advisers to other Executive Branch agencies such as the Department of Justice. Neither In re Sealed Case nor Judicial Watch attempted to set the outer boundaries of what types of presidential decision-making fall under that protection, and neither of these decisions adopted the radical restrictions on application of the privilege that Joint Defendants now propose.

Opp. at 5 (citation omitted).

As the Special Master noted in Report and Recommendation # 164, the District of Columbia Circuit Court examined the matter inJudicial Watch and expressly rejected the limitation proposed by Joint Defendants here:

the dissent's qualification that the protection of the presidential communications privilege would attach only if the advice is on a "quintessential and nondelegable Presidential power," Dissenting Op. at 1, draws an arbitrary line, for it provides no reason to conclude that presidential decisions that could have been delegated, but were not, are entitled to less candid or confidential advice than those that could not have been delegated at all.

Judicial Watch, Inc. v. Department of Justice, 365 F.3d 1108, 1123 (D.C. Cir. 2004).¹¹ Rather, and as noted in the legal discussion infra, the court held that "the presidential communications privilege applies only to . . . documents `solicited and received' by the President or his immediate White House advisers who have `broad and significant responsibility for investigating and formulating the advice to be given the President.'" Id. at 1114, quoting In re Sealed Case, 121 F.3d at 752.

11 The Special Master notes that Joint Defendants have objected to the position taken in Report and Recommendation #164.

The Special Master noted in Report and Recommendation #164 that

[i]mplicit in the Circuit Court's holding in Judicial Watch is the requirement that the communications be used by the advisor to advise the President "in the process of shaping policies and making decisions," Nixon v. Administrator of General Services, 433 U.S. 425, 499 (1977), and that the communications sought to be protected by the privilege "reflect presidential decisionmaking and deliberations." In re Sealed Case, 121 F.3d at 744. Therefore, the privilege is "limited to materials connected to presidential decisionmaking, as opposed to other executive branch decisionmaking." Id. at 745.

Report and Recommendation #164 at 13.

Also as noted in Report and Recommendation #164, the Special Master is mindful that "[t]he presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President," and that "privileges should be narrowly construed." Id. at 752. Therefore, the Special Master has taken a narrow approach to analyzing the applicability of the privilege for the Challenged Documents, focusing on whether the deliberations ultimately called for Presidential decisionmaking.

Second, with respect to Joint Defendants' need for documents otherwise protected by the deliberative process privilege, the Special Master notes, as in prior Reports and Recommendations, that both the deliberative process privilege and presidential communications privilege can be overcome by a proper showing of need. With respect to the deliberative process privilege, "[t]his need determination is to be made flexibly on a case-by-case, ad hoc basis" and "[e]ach time [the deliberative process privilege] is asserted," there must be "a fresh balancing of the competing interests," taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees." In re Sealed Case, 121 F.3d at 737-38.

Two of the factors, the role of the government in the litigation and the seriousness of the litigation, have been and will continue to be constant in this litigation. Because these factors weigh in favor of disclosure of documents to Joint Defendants otherwise protected by the deliberative process privilege, the Court has approved the Special Master's previous recommendation that the balancing test "must primarily focus on other factors." Mem. Op. to Order # 372 at 6.

Additionally, the Special Master has noted in prior Reports and Recommendations that relevancy is a prime factor in determining need. See, e.g., RR #140 at 19 (adopted in part and overruled in part by Order #515). See also United States v. Farley, 11 F.3d 1385, 1390 (7^th Cir. 1993) ("Since the documents at issue are not relevant to the controversy before us, Farley cannot, as a matter of law, make a showing of need.").

Third, the Special Master notes that, with respect to the presidential communications privilege, the need standard is quite rigorous:

A party seeking to overcome a claim of presidential privilege must demonstrate: first, that each discrete group of the subpoenaed materials likely contains important evidence; and second, that this evidence is not available with due diligence elsewhere. The first component, likelihood of containing important evidence, means that the evidence sought must be directly relevant to issues that are expected to be central to the trial . . . The second component, unavailability, reflects Nixon's insistence that privileged presidential communications should not be treated as just another source of information. See [United States v.] North, 910 F.2d [843], 952 n. 29 [(D.C. Cir. 1990)] (Silberman, J., concurring in part and dissenting in part) (acknowledging that one possible difference between the showing necessary to satisfy Rule 17(c) and Nixon's need standard is that the latter "would also require a showing that the evidence is unavailable from any source other than the President"). Efforts should first be made to determine whether sufficient evidence can be obtained elsewhere, and the [challenging party] should be prepared to detail these efforts and explain why evidence covered by the presidential privilege is still needed.

In re Sealed Case, 121 F.3d at 754-55.

In a civil case particularly, the party seeking to overcome the privilege must make a showing "beyond the routine desire of every party to discover relevant information to assist in the preparation of a case." Dellums v. Powell, 561 F.2d 242, 249 (D.C. Cir. 1977) (finding that the parties seeking to overcome the privilege made a showing that the information sought was "substantially material" to a main issue in the case). Thus, the showing needed to overcome the presidential communications privilege is a high one.

Fourth, the Special Master notes that, in Order # 476, the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto. See Order # 476. Therefore, to the extent that Joint Defendants claim that the documents at issue are relevant to these particular affirmative defenses, the Special Master is constrained to find a lack of relevance based on the Court's decision in Order #476. See also Report and Recommendation #154 (adopted by Order #541).

Finally, the Special Master notes that the Circuit Court concluded in In re Sealed Case that the "differences between the presidential communications privilege and the deliberative privilege demonstrate that the presidential privilege affords greater protection against disclosure." In re Sealed Case, 121 F.3d at 746. Accordingly, the Special Master need only "address application of the deliberative process privilege as to any document only if [it is] determined that the withheld document is not subject to the presidential privilege." Id.

III. Legal Standard

A. Attorney-client Privilege

"The attorney-client privilege is the oldest of the privileges known to the common law . . . Its purpose is to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice." Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); see also Securities Exchange Comm'n v. Gulf Western Indus., Inc., 518 F. Supp. 675, 680 (D.D.C. 1981). It applies in situations where it is necessary to promote frank and open communications between a client and his or her lawyer. Western Trails, Inc. v. Camp Coast to Coast, Inc., 139 F.R.D. 4, 7 (D.D.C. 1991), citing Fisher v. United States, 449 U.S. 383 (1981). "`[The] protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning the fact is an entirely different thing.'" Upjohn, 449 U.S. at 395-96 (citing Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)).

As noted by the Supreme Court, the privilege was "founded upon the necessity, in the interest and administration of justice, of the aid of persons having knowledge of the law and skilled in its practice, which assistance can only be safely and readily availed of when free from the consequences or the apprehension of disclosure." Hunt v. Blackburn, 128 U.S. 464 (1888); Upjohn, 449 U.S. at 389. An end result of the privilege is the promotion of the "broader public interests in the observance of law and administration of justice." Neuder v. Battelle Pacific Northwest Nat'l Lab., 194 F.R.D. 289, 292 (D.D.C. 2000), quoting Upjohn, 449 U.S. at 389.

In assessing a privilege claim, the Court (and presumably a Special Master appointed by the Court to assist in the resolution of privilege disputes) must seek to "achiev[e] a balance between the need for the disclosure of all relevant information and the need to encourage free and open discussions by clients in the course of legal representation." In re Ampicillin Antitrust Litig., 81 F.R.D. 377, 384 (D.D.C. 1978). The District of Columbia Circuit has stated that the privilege is to be narrowly construed and applied only to situations where its purposes will be served. Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980).

In order for the claimant to meet its burden to demonstrate the existence of the privilege, the claimant must show:

(1) the asserted holder of the privilege is or sought to become a client;

(2) the person to whom the communication was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion of law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort, and (4) the privilege has been (a) claimed and (b) not waived by the client.

United States v. United Shoe Machinery Corp., 89 F. Supp. 357, 358-59 (D. Mass. 1950).

The District of Columbia Circuit Court has added "two additional black letter statements" to Judge Wyzanski's recitation in United Shoe of the privilege standards. In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984). First, communications from the attorney to the client may be privileged "if they rest on confidential information obtained from the client." Id. (citing Mead Data Central, 566 F.2d at 254). Second, the fact that the attorney at issue serves as in-house counsel to the privilege holder "does not dilute the privilege;" however, the attorney's legal advice can be protected "only upon a clear showing that [the attorney] gave it in a professional legal capacity." Id. (citing Gulf Western, 518 F. Supp. at 683).

The privilege generally protects communications from the client to the attorney where the client intends that the information be confidential. In re Ampicillin Antritrust Litig., 81 F.R.D. at 388. Communications from the attorney to the client generally are not covered by the privilege, unless the communication will directly or indirectly reveal the confidential communication of the client, or if the attorney's communication is based on the confidential information provided by the client. Id.; see also Carey-Canada, Inc. v. California Union Ins. Co., 118 F.R.D. 242, 247-48 (D.D.C. 1986). The client must have expressly requested confidentiality or reasonably assumed that the communications would be held in confidence. Gulf Western, 518 F. Supp. at 682, quoting McCORMICK ON EVIDENCE § 91 at 187-88 (2d ed. 1972). In the governmental context, the client may be the agency and the attorney may be an agency lawyer. Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999), citing Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997).

Because confidentiality is an important aspect of the privilege, any communications made by a client in the presence of a third person will waive the privilege. See, e.g., United States v. Evans, 113 F.3d 1457 (7^th Cir. 1997). Waiver of the privilege can be express or implied, inadvertent or deliberate. Neuder, 194 F.R.D. at 298. When waiver is achieved, it applies to all related communications. Western Trails, 139 F.R.D. at 8-9, quoting In re Sealed Case, 877 F.2d 976, 980 (D.C. Cir. 1989).

B. Deliberative Process Privilege

The deliberative process privilege "protects the decisionmaking processes of government agencies" and "encourages the frank discussion of legal and policy issues" by ensuring that agencies are not "forced to operate in a fishbowl." Wolfe v. Department of Health Human Servs., 839 F.2d 768, 773 (D.C. Cir. 1988) ( en banc). The privilege has a number of purposes:

it serves to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and misleading the public by dissemination of documents suggesting reasons and rationales for a course of action which were not in fact the ultimate reasons for the agency's action.

Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (citing Jordan v. Department of Justice, 591 F.2d 753, 772-74 (D.C. Cir. 1978) ( en banc)).

"[The agency asserting the privilege] bears the burden of establishing all the required elements of the privilege." Mem. Op. to Order #292 at 2 (citing Senate of Puerto Rico v. Department of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)). In order to do so, the agency "must first establish that the witheld material is both pre-decisional and deliberative." Id. at 2-3 (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997));see also Petroleum Info. Corp. v. Department of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992); Access Reports v. Department of Justice, 926 F.2d 1192, 1194 (D.C. Cir. 1992); Formaldehyde Inst. v. Department of Health Human Servs., 889 F.2d 1118, 1121 (D.C. Cir. 1989).

The inquiry into whether the communication is "pre-decisional" looks to whether the document was "prepared in order to assist an agency decisionmaker in arriving at [a] decision." Petroleum Info. Corp., 976 F.2d at 1434 (quoting Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 184 (1975)). Materials expressly incorporated into a final decision, or issued in support of a final decision, are not considered pre-decisional even if created prior to the time the decision is made. The reason for this exclusion is that once the decision is made, there is no longer the concern that release of the information will chill open and frank discussion within an agency. As noted by the Supreme Court:

The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports . . . (disclosure).

Bristol-Meyers Co. v. FTC, 598 F.2d 18, 24-25 (D.C. Cir. 1978) (quoting NLRB v. Sears, Roebuck Co., 421 U.S. 132, 161 (1965) (emphasis in original)).

Our Circuit has opined that "even if [a] document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States, 617 F.2d at 866. Documents falling into this category have been described as those that are "operating or being used as agency `secret law' or `working law' . . . [and are] defined as `interpretations of established policy on which the agency relies in discharging its regulatory responsibilities.'" United States v. Philip Morris USA, Inc., 218 F.R.D. 312, 319 (D.D.C. 2003), quoting Tax Analysts v. IRS, 294 F.3d 71, 81 (D.C. Cir. 2002). "Where agency personnel rely on materials as established policy in discharging their regulatory responsibilities, `withholding them would serve no legitimate policy interest of the government.'" Id. at 319-20, quotingCoastal States, 617 F.2d at 869.

To determine whether a document constitutes an agency's working law, the "analysis must begin with consideration of `the function and significance of the document in the agency's decisionmaking process.'" Id. at 320, quoting Taxation with Representation Fund v. IRS, 646 F.2d 666, 678 (D.C. Cir. 1981). Factors to consider include "evidence that agency staff itself is treating the document as precedential guidance;" "the nature of the decisionmaking authority vested in the office or person issuing the disputed document;" and "whether [the document was] sent from a subordinate to a superior or vice versa." Id. (citations and quotations omitted).

Where the document at issue originates from an agency that is not a traditional "line agency" with regulatory or enforcement responsibilities and dealings with the public, "it is simply not meaningful to analyze whether [the documents at issue] serve as agency working law" and "the Special Master should focus only on whether the documents . . . meet the two core requirements of the deliberative process privilege, that is whether they are predecisional and deliberative." Id. at 321-322.

Material is deliberative if it "reflects the give-and-take of the consultative process." Coastal States Gas, 617 F.2d at 866. The inquiry into whether material is deliberative focuses on whether disclosure of material would discourage candid and frank discussion within an agency. Access Reports, 926 F.2d at 1195 (quoting Dudman Communications v. Department of Air Force, 815 F.2d 1565, 1567-68 (D.C. Cir. 1987)). Materials considered deliberative include "recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency." Coastal States Gas, 617 F.2d at 866.

Material that is purely factual is generally not protected by the deliberative process privilege. EPA v. Mink, 410 U.S. 73 (1973). The line between fact and opinion, however, is not always clear, nor is it dispositive on the question of whether the material is deliberative. Petroleum Info. Corp., 976 F.2d at 1434. Where the release of factual material may expose the deliberative process of the agency, the information falls within the privilege. See, e.g., Montrose Chemical Corp. v. Train, 491 F.2d 63 (D.C. Cir. 1974) (a factual summary of evidence presented at an administrative hearing found to be deliberative as the staff attorney preparing the summary exercised disctretion as to what record evidence would be important to the Administrator in making a decision on the matter). Also, all "non-exempt portions of a document must be disclosed unless they are inextricably intertwined with exempt portions." Mead Data Central, Inc. v. Department of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). Therefore, in determining the applicability of the privilege, the focus is less on the nature of the materials and more on the effect that disclosure of the materials would have on the ability of the agency to conduct open discussions.Dudman Communications, 815 F.2d at 1568.

The deliberative process privilege is not absolute; rather it is a qualified privilege that can be overcome by a sufficient showing of need. In re Sealed Case, 121 F.3d at 737. In determining whether a "sufficient showing" has been made, courts generally balance the competing interests taking into account factors such as "the relevance of the evidence," "the availability of other evidence," "the seriousness of the litigation," "the role of the government," and the "possibility of future timidity by government employees." Id. at 737-38 (citations omitted).

C. Presidential Communications Privilege

The presidential communications privilege may be invoked to protect materials reflecting the decision making process of the President, and applies "to communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate." In re Sealed Case, 121 F.3d at 752. It is "limited to communications `in performance of [the President's] responsibilities,' `of his office,' and made `in the process of shaping policies and making decisions.'" Id. at 744 (quotingNixon v. Administrator of General Services, 433 U.S. at 449).

The privilege is rooted in the doctrine of separation of powers and, although communications that meet the standard presumptively are privileged, the privilege is a qualified one. Id. at 743. The parameters of the privilege have been described as follows:

The President can invoke the privilege when asked to produce documents or other materials that reflect presidential decisionmaking and deliberations and that the President believes should remain confidential. If the President does so, the documents become presumptively privileged. However, the privilege is qualified, not absolute, and can be overcome by an adequate showing of need. If a court believes that an adequate showing of need has been demonstrated, it should then proceed to review the documents in camera to excise non-relevant material. The remaining relevant material should be released. Further, the President should be given an opportunity to raise more particularized claims of privilege if a court rules that the presidential communications privilege alone is not a sufficient basis on which to withhold the document.

Id. at 744-45. The privilege may be asserted by both current and former Presidents. Nixon v. Administrator of General Servs., 433 U.S. at 449.

The determination of whether there has been an adequate showing of need "depends on a weighing of the public interest protected by the privilege against the public interest that would be served by disclosure in a particular case." Nixon v. Sirica, 487 F.2d 700, 716 (D.C. Cir. 1973). As articulated by the Supreme Court, the privilege provides the President and his advisors the "freedom to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately." United States v. Nixon, 418 U.S. 683, 708 (1974). The privilege clearly is engrained in the need to maintain the privacy of the communications to enable the President to exercise his constitutional responsibilities, and should not be overcome lightly. See In re Sealed Case, 121 F.3d at 746 (noting that the presidential communications privilege is more difficult to overcome than the deliberative process privilege).

A party seeking to overcome the privilege may do so by demonstrating: (1) "that each discrete group of the . . . materials likely contains important evidence," meaning "that the evidence sought must be directly relevant to the issues that are expected to be central to the trial;" and (2) "that this evidence is not available with due diligence elsewhere," meaning "that privileged presidential communications should not be treated as just another source of information." Id. at 754-55.

IV. Document-by-Document Review

A. Documents Relating to the 1997 Proposed Settlement between the States' Attorneys General and the 1998 MSA

Mr. Locke explains that, "around mid-1997," the United States learned that the states involved in the attorneys general lawsuit had reached a proposed settlement with the tobacco industry. Locke Decl. at 5. "Under this proposed settlement, some or all of the funds to be paid by the tobacco companies would be paid to the United States. If the United States were to share in the settlement, the United States would receive billions of dollars."Id. at 5-6.

In light of this possibility, the White House, OMB and the DPC undertook a review and evaluation of the proposed settlement.Id. at 6; see also Reed Decl. at 7. "The principal purposes of the review and evaluation of the proposed settlement were to determine whether the United States should support or oppose the proposed settlement, propose changes to it, or propose legislation or regulations to effectuate or accompany the settlement." Locke Decl. at 6; Reed Decl. at 7. "This analysis included a large amount of economic analysis to determine the likely effect of the settlement on the level of cigarette smoking in the United States, particularly among underage smokers, and on federal revenues and federal spending." Locke Decl. at 6.

The 1997 proposed settlement did not come to fruition, however, as in

mid- to late-1998 . . . the states and the tobacco companies had entered into a new proposed settlement agreement, which came to be known as the MSA. Unlike the 1997 proposed settlement, the MSA did not provide for payments to the United States; instead, the payments to be made by the tobacco companies were to be made to the individual states. As a result, the Executive Branch did not undertake as much, or as detailed, analysis of the MSA as it did of the 1997 proposed settlement. Nevertheless, because the Clinton Administration, regardless of any settlement between the states and the tobacco industries, (a) still wanted to effect a reduction in underage smoking, and (b) needed to determine the effect of any settlement on future Federal tobacco-related legislation, the Executive Branch, including OMB, performed review and analysis of the MSA similar to the review and analysis of the 1997 proposed settlement.

Id. In this instance, "OMB's primary focus was on the effects of the MSA on cigarette prices and consumption, and the implications of those effects on changes in Federal revenue and cigarette consumption that might be expected from further Federal tobacco tax increases and other tobacco legislation being considered by the Administration." Id.

Mr. Locke explains that the "purpose of the review and analysis of the proposed settlements was (1) to assist the White House, OMB, and the relevant Executive Branch agencies and offices in becoming familiar with and understanding the likely effects of the proposed settlements, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch, as led by the President, should take with respect to the proposed settlements, including individual provisions, and to the need for accompanying legislation or regulation." Id.

Joint Defendants argue that their need for such information outweighs any valid privilege claim Plaintiff may have. First, they assert that, to the extent that "the discussions contained in these documents reflect on the adequacy, merit, effectiveness, and/or the legality of the requirements contained within the proposed legislation, existing laws or regulations, and/or the binding agreements governing Joint Defendants," they believe that such discussions "and hence certain injunctive relief sought by the Government in this case, conflict with the existing statutory and regulatory framework that Congress has carefully crafted for the United States Tobacco Industry." Mot. App. B at 11.

Joint Defendants also contend that discussions contained within the documents likely are relevant to their affirmative equitable defenses, including laches, waiver, equitable estoppel, unclean hands, in pari delicto, and participation in the RICO enterprise, in that the discussions "acknowledge that the Federal government has deliberately and consciously struck this balance with full awareness and knowledge of the risks associated with smoking, and with full awareness, knowledge, and in some instances support, of Joint Defendants' allegedly fraudulent conduct." Id. at 12.

Moreover, to the extent that the "documents contain discussions and communications assessing the impact cigarette price adjustments would have on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes[,] [s]uch discussions and communications could very well contradict claims or assumptions made by the Government's experts in this litigation." Id. at 13. Additionally, they claim as relevant discussions that "reflect on the legality or merit of proposed penalties and/or taxes that could impact the Tobacco Industry to such an extent as to cause an undesirable increase in cigarette smuggling, a runaway black market for cheap cigarettes, and/or bankruptcy of the Tobacco Industry." Id.

Finally, Joint Defendants contend that discussions relating "to whether the proceeds from the MSA constitute federal revenues, and whether the Federal government should seek recoupment from the states . . . are relevant to Joint Defendants' affirmative defenses, including `laches,' `waiver,' `estoppel,' `unclean hands,' and ` in pari delicto.'" Id. at 14.

1. PRA079-0312-0313 [CD 18]

"This document is a June 23, 1999 email from Cynthia A. Rice¹² to a large group of OMB and White House officials and employees providing Ms. Rice's opinion/analysis of the possible effect of a federal lawsuit against the tobacco companies on MSA payments to the states." Reed Decl. at 8; Gonzales Decl. Ex. A at 2. Plaintiff claims the deliberative process privilege.

12 The Special Master has attached hereto as Appendix B an index delineating the names and titles of all government employees referenced in this Report and Recommendation. At Appendix A, there is a chart outlining the document challenge numbers, bates numbers, categories as set forth by Plaintiff, privilege(s) claimed, recommended rulings, and any pertinent notes pertaining to the documents at issue.

The Special Master recommends that the Court sustain the deliberative process privilege for this document, as it reflects the give-and-take of agency deliberations. See Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). Ms. Rice notes that "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." She opines in response to this inquiry that" REDACTED REDACTED REDACTED "The Special Master further believes that these discussions are predecisional to the issue of REDACTED REDACTED REDACTED.

Having reviewed the Challenged Document and Joint Defendants' need arguments, the Special Master does not believe that Joint Defendants have made a sufficient showing of need for the otherwise privileged discussions contained in Ms. Rice's email.

2. PRA172-4159-4523 [CD 100]

This document is undated; however Mr. Reed believes that it was "very likely" created in January, 1999. Reed Decl at 9; Gonzales Decl. Ex. A at 2. It is a "memorandum from Jonathan D. Gruber to Cynthia A. Rice discussing and explaining assumptions and methodology used in calculating tobacco company excess profits under the MSA . . . [which] compares and contrasts [Mr. Gruber's] analysis with that of Gary Black and notes that Ms. Rice may want to seek further guidance with respect to the issues raised by that comparison." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. Here, Dr. Gruber indicates that the attached spreadsheet contains preliminary calculations, and that Ms. Rice should consult with other departments on some of the calculations presented. It is therefore predecisional and deliberative to the issue of excess profits to the industry.

Joint Defendants have argued that deliberations regarding the impact that cigarette prices would have on their profits are relevant to a determination of their consistency to the claims and assumptions made by Plaintiff's experts in this case. Mot. App. B at 13. The Special Master agrees that these discussions are relevant, and notes that such internal deliberations are not available to Joint Defendants from other sources. Moreover, Dr. Gruber is an expert in this case and the document reflects his methodology and calculations on excess profits. There is no indication that his analysis is "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866. Hence, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

3. PRA172-4555-4557 [CD 112]

Mr. Locke explains that "[t]he withheld portion of this document (all of page 4557 except the first line) is that portion of a November 18, 1998 email from Patrick Locke to Joshua Gotbaum, with copies to Richard Turman, William G. White, Hugh Connelly, and Victoria Wachino, listing and explaining assumptions Mr. Locke used in scoring the provisions of the MSA in the internal OMB tobacco model." Locke Decl. at 7. Plaintiff claims the deliberative process privilege for the proposed redaction.

Plaintiff only seeks protection for the portion of the email entitled, " REDACTED REDACTED REDACTED." This portion contains assumptions made by Mr. Locke in analyzing the MSA as part of the Administration's efforts to examine "the effects of the MSA on cigarette prices and consumption, and the implications of those effects on changes in Federal revenue and cigarette consumption that might be expected from further Federal tobacco tax increases and other tobacco legislation being considered by the Administration." Locke Decl. at 6. Hence, the proposed redaction is protected by the deliberative process privilege.

The Special Master does not believe that Joint Defendants can show need for this document as information pertaining to the terms and conditions of the MSA are available to them from other sources, and because the specific issues addressed in the proposed redaction are not claimed within Joint Defendants' need arguments.

4. PRA172-4594-4607 [CD 116]

This document is a November 15, 1998 memorandum from Joshua Gotbaum to Jacob Lew and Sylvia Mathews, with copies to Richard P. Emery, Daniel Mendelson, Richard Turman, and Patrick Locke, presenting OMB staff's preliminary estimates of the effect of the to-be-announced MSA and discussing the effect of that agreement on the Administration's tobacco plans. The memorandum further discusses the role of Medicaid tobacco recoupment and what effect recoupment legislation might have on Federal outlays. Attached to this memorandum are the following: (a) draft "Proposed '98 AG [Attorneys General] Agreement vs. FY 1999 Budget Proposal," comparing projected payments under the MSA with 1999 Budget proposals over 25 years; (b) draft "Tobacco Receipts and Per Pack Equivalents" for the years 1999-2004, including handwritten notes and comments on two pages; (c) "Spending Options of 50 cent per Pack Tobacco Tax Increase," with handwritten comments and notes; (d) a draft two-page document concerning Medicaid recoupment and the MSA, with options on how to score costs under the MSA, including notes and comments concerning these options; (e) an internal paper measuring the effect of recoupment legislation on Federal outlays under two options, including handwritten notes; and (f) draft press guidance for November 16, 1998 concerning the upcoming announcement by President Clinton about the MSA and Administration Budget plans on tobacco, with handwritten edits. Mr. Locke explains that the handwritten notes are Ms. Wachino's. Locke Decl. at 7. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the documents deliberate the impact the MSA is expected to have on revenues. Moreover, the documents contain extensive handwritten comments and questions to the material presented, and are therefore clearly predecisional to the policy issues of possible uses of any revenue generated.

Joint Defendants, in their need arguments, have tied such discussions to their affirmative equitable defenses. See Mot. App. B at 14. As the Special Master has previously noted, such defenses are no longer part of this case. Therefore, Joint Defendants have not established sufficient relevance of these documents to the remaining claims and defenses to justify overcoming Plaintiff's privilege claim to this material.

5. PRA172-4645-4655 [CD 119]

This document contains undated draft tables prepared in November 1998, based on press reports of the MSA, some with Victoria Wachino's handwritten notes: (a) "Industry Payments and Per Pack Equivalents" (five copies, including one with handwritten notes), projecting payments to be made under the MSA and compared to the 1999 Budget proposal; (b) "Possible State AG Settlement vs. FY 1999 Budget Proposal" (two copies of one version; one copy of a second version); (c) the two-page options paper concerning Medicaid recoupment and the MSA described in Challenged Document #116; and (d) "Spending Options of 50 Cent Per Pack Tobacco Tax Increase." Locke Decl. at 8. Plaintiff claims the deliberative process privilege.

These documents are similar in nature to those discussed supra that are comprised within Challenged Document 116, and are deliberative in that they project payments that could be expected under the settlement and relate the payments to the budget proposals. Moreover, they are predecisional to a final Administration budget proposal. Hence, consistent with the recommendation for Challenged Document 116, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 119, notwithstanding Joint Defendants' asserted need.

6. PRA172-4661-4661 [CD 120]

Mr. Locke explains that "[t]his document is an undated (but probably November 1998) Victoria Wachino handwritten outline of a table entitled `Net Federal Resources from FY 1999 Proposal after State Settlement,'" which "appears to be a mockup of table (a) in Challenged Document #119." Locke Decl. at 8. Plaintiff claims the deliberative process privilege.

As this document is related to one of the charts contained within Challenged Document 119, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 120, notwithstanding Joint Defendants' claim of need.

7. PRA172-4935-4936 [CD 161]

Plaintiff has released a portion of this document and continues to claim the deliberative process privilege for the top half of page 4935 and brief handwritten notes by Victoria Wachino on page 4936. The document is a December 10, 1998 email from William G. White to Daniel Mendelson and Chris Jennings, with copies to Barry Clendenin, Mark Miller, Richard Turman, and Anne Tumlinson, providing Mr. White's opinion on the interpretation of the provision in the MSA concerning the offset for federal tobacco-related legislation, and suggesting that legal staff at HHS, OMB, or elsewhere be contacted for an analysis of the intent and meaning of the provision. Ms. Wachino's handwritten notes on the second page record her thoughts concerning what the Administration position should be. Locke Decl. at 8.

The Special Master recommends that the Court sustain the privilege claim for the proposed redaction as this document is in draft form and therefore reflects the thoughts and opinions of Mr. White and Ms. Wachino and not the policy of the Administration. Coastal States, 617 F.2d at 866. The Special Master further believes that Joint Defendants have not shown need for this document as they have not shown the relevance of communications pertaining to interpretation of the MSA.

8. PRA181-0788-0789 [CD 290]

This document consists of two emails related to an attached draft "Statement on Tobacco" to be made by the President. The first is dated October 2, 2000, and is from "Christina S. Ho to a large group of White House, OMB, and Department of Justice personnel, transmitting the draft statement." Reed Decl. at 9; Gonzales Decl. Ex. A at 3. The second is dated October 5, 2000, and is from "Eric W. Hunn to Ms. Ho and David J. Haun, offering his response to the request for comments. The attached draft deals with the subject of states' spending their MSA funds on tobacco-related activities and the Federal lawsuit." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claim for page 0788, which contains only non-deliberative email correspondence. The Special Master further recommends that the Court sustain the presidential communications privilege for page 0789, as it is a draft statement to be made by the President and created by one of the President's immediate advisers — the Assistant Director for Domestic Policy — to advise the President regarding an official statement on tobacco policy. The Special Master does not believe that Joint Defendants can show need for this document as they have not shown that information in this draft presidential statement is directly relevant to an issue expected to be central to this litigation. In re Sealed Case, 121 F.3d at 754. Moreover, because the final version is available to Joint Defendants, the Special Master does not believe that they can make a showing that similar information is not available to them from other sources.

9. PRA181-1010-1011 [CD 334]

This document consists of "four emails (sent between November 23, 1998 and December 10, 1999) forwarding questions and answers for the President to assist him in responding to anticipated questions about the MSA." Reed Decl. at 9; Gonzales Decl. Ex. A at 3. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims. First, there is no indication on this document that it was sent to the President or a highlevel decisionmaker responsible for advising the President "in the process of shaping policies and making decisions." Nixon, 433 U.S. at 449. Moreover, the exchange, which took place from November 23, 1998 to December 10, 1999, appears to be a discussion among agency employees of Administration policy already announced on November 20, 1998, and not pre-decisional communications.

10. PRA181-2221-2222 [CD 443]

"This document is a duplicate of Challenged Document #290, except with a different non-substantive final email." Reed Decl. at 9; Gonzales Decl. Ex. A at 3. Consistent with the recommendation for Challenged Document 290, the Special Master recommends that the Court overrule the privilege claims for the non-deliberative emails on page 2221, and sustain the claim of presidential communications privilege for page 2222, notwithstanding Joint Defendants' claimed need.

11. PRA181-2377-2378 [CD 466]

This document consists of "two emails and an attachment: (a) October 4, 2000, Chris J. Watney to Paul Yanowitch and Christina S. Ho, with a copy to Andrea Kane, discussing draft remarks by the Attorney General concerning tobacco (the referenced remarks are not part of this document); and (b) October 5, 2000, Ms. Ho to Bill Hall, transmitting draft remarks by the President concerning how the states are spending their MSA funds, requesting review by Mr. Hall." Reed Decl. at 10; Gonzales Decl. Ex. A at 3. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2377, which contains non-deliberative email communications, and sustain the privilege claim for page 2378. Both the email correspondence and the draft remarks indicate the non-final nature of the document: the email notes that the remarks are a draft and the final will be available the following day, and the remarks contain redline and strikethroughs. As such, it represents the preliminary views of government employees and not the policy of the Administration.¹³ The Special Master does not believe that Joint Defendants can show need for this document. First, they have not shown the relevance of preliminary remarks on how the states have chosen to spend tobacco funds. Second, the challenged document contains a draft position; Joint Defendants have access to any final statements made.

13 This document is also substantially similar to Challenged Document 290, where the Special Master recommended that the Court sustain the claim of presidential communications privilege.

12. PRA181-2432-2433 [CD 474]

This document comprises "two October 5, 2000 emails discussing a draft statement by President Clinton on how the states spend their MSA funds (a revised version of the attachment described in Challenged Document #466): (a) Joshua Gotbaum to Christina S. Ho, with copies to a large group of White House and OMB personnel, transmitting the draft statement with OMB edits and comments; and (b) Andrea Kane to Mr. Gotbaum, with a copy to Christina S. Ho, responding to a question raised by OMB in its edits and comments." Reed Decl. at 10; Gonzales Decl. Ex. A at 3. Plaintiff claims the deliberative process and presidential communications privileges.

As this document is similar in nature to Challenged Document 466 (which in turn is substantially similar to Challenged Document 290), the Special Master recommends that the Court sustain the presidential communications privilege for the email, which contains substantive discussion of the draft statement, and the draft statement itself, notwithstanding Joint Defendants' claimed need.

13. PRA181-2439-2445 [CD 475]

Plaintiff has released a portion of this document and continues to claim the deliberative process and presidential communications privileges to "a May 16, 2000 email from Danny McGoldrick, to J. Eric Gould and Bill Corr, transmitting and discussing briefly a package of materials (`all of course strictly confidential') being prepared for a press event the next day: (a) draft version of a press release concerning an increase in tobacco company advertising to children since the MSA; and (b) two reports in support of the findings to be announced in the press release." Reed Decl. at 10; Gonzales Decl. Ex. A at 3; see also Opp. App. 10 at 9 ("This communication concerns materials for an upcoming press event to be held by the President.").

The Special Master recommends that the Court sustain the presidential communications privilege for the documents as they were compiled for the Associate Director of Domestic Policy to advise the President regarding an upcoming press conference. The Special Master does not believe that Joint Defendants have shown need for this document. First, they have not shown that this information is directly relevant to a central issue in this case; second, they have not shown that the information is not available with due diligence from other sources as the document contains publicly available material otherwise available to Joint Defendants and public remarks to be made by the President at the press event. In re Sealed Case, 121 F.3d at 754.

B. Documents Relating to Tobacco Legislative Proposals

Mr. Locke explains that, "[f]ollowing the collapse of the 1997 proposed settlement agreement, the Clinton Administration, which earlier had been considering the need for comprehensive tobacco legislation, renewed its consideration of such legislation. At about the same time, Sen. McCain proposed his version of such legislation (the "McCain bill" or "McCain legislation"). This legislation (which included its own proposed "Master Settlement Agreement"), like the 1997 proposed settlement, provided that some or all of the funds to be paid by the tobacco companies would be paid to the United States." Locke Decl. at 8-9.

The Executive Branch, with OMB assuming a central role, undertook an analysis of the proposed legislation. Mr. Locke explains that "[t]he principal purposes of the review and evaluation of the proposed legislation, including the McCain bill, were to determine whether the United States should support or oppose the proposed legislation, propose changes to it, or propose its own legislation or regulations to effectuate or accompany the proposed legislation." Id. at 9. He further explains that "the purpose of the review and analysis of the proposed legislation always was (1) to assist the White House, OMB and the relevant Executive Branch agencies and offices in becoming familiar with and understanding the likely effects of the proposed legislation, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch should take with respect to the proposed legislation, including individual provisions, and to the need for other legislation or regulation." Id.

Joint Defendants contend that their need for documents relating to proposed legislation outweighs any privilege claim that Plaintiff has. They assert that:

Congress considered, but ultimately rejected, tobacco legislation that would have imposed many of the same requirements sought by the Government's requested relief. Specifically, the Government's requested relief includes preventing Joint Defendants from providing incentives to retailers based on the currency of payment and the requirements for payment, restricting advertising of Joint Defendants' tobacco products to black and white print-only formats in all forms of media advertising, preventing Joint Defendants from sponsoring events such as tennis tournaments and racing events, dictating how Joint Defendants' products must be labeled above and beyond current regulatory authorities, preventing and modifying Joint Defendants' research practices, preventing Joint Defendants' lobbying practices, requiring Joint Defendants to fund the Government-conducted projects and publicity for those projects such as a "national toll-free cessation `quit line' operated by a public health authority, with sufficient funding for frequent publicity," and requiring Joint Defendants to fund an enforcement authority to insure smoke-free environments are maintained where required by law.

Mot. App. B at 10-11 (citations omitted). Joint Defendants argue that "[d]iscussions of the same or similar proposed remedies contained in these Challenged Documents are relevant to Joint Defendants', as well as the Court's, evaluation and analysis of their alleged efficacy." Id. at 11.

To the extent that the discussions regarding proposed legislation address "the adequacy, merit, effectiveness, and/or the legality of the requirements contained within the proposed legislation," Joint Defendants contend that they relate to certain injunctive relief Plaintiff seeks and whether it "conflict[s] with the existing statutory and regulatory framework that Congress has carefully crafted for the United States Tobacco Industry." Id. "Additionally, Joint Defendants believe that such discussions and communications indicate that certain provisions of the proposed legislation . . . violate fundamental constitutional principles, such as separation of powers and the First Amendment. Such discussions are clearly relevant to certain of Joint Defendants' affirmative defenses." Id. at 11-12.

Joint Defendants also believe that discussions regarding the impact the proposed legislation has on federal revenues "offer insight into the equity of the Government's requested injunctive relief in light of the Government's participation in, and profiting of, Joint Defendants' alleged RICO conspiracy, as well as what the Government believes was appropriately considered in determining proposed penalties, taxes, and assessments against the Tobacco Industry." Id. at 12.

Moreover, to the extent that the "documents contain discussions and communications assessing the impact cigarette price adjustments would have on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes[,] [s]uch discussions and communications could very well contradict claims or assumptions made by the Government's experts in this litigation." Id. at 13. Additionally, they claim as relevant discussions that "reflect on the legality or merit of proposed penalties and/or taxes that could impact the Tobacco Industry to such an extent as to cause an undesirable increase in cigarette smuggling, a runaway black market for cheap cigarettes, and/or bankruptcy of the Tobacco Industry." Id.

1. PRA079-0124-0126 [CD 7]

Plaintiff has released a portion of this document (the bottom part of 0124), and claims the deliberative process privilege for "two October 19, 2000 emails and `internal use only' press guidance." Reed Decl. at 12; Gonzales Decl. Ex. A at 4. The first is from "Andrea Kane to Christina S. Ho, Michael Deich, Mary L. Smith, and David J. Haun, with copies to Joanne E. Slaney and Lisa M. Kountoupes, seeking information concerning language in the HUD/VA appropriations bill about HUD financing of Indian smokeshops and offering preliminary views as to the Administration's position on that language (depending upon what the language is)." Id. The second is from "Ms. Kane to Ms. Ho, Mr. Deich, Ms. Smith, and Mr. Haun, with copies to Ms. Slaney, Ms. Kountoupes, Francis S. Redburn, and Sherron Duncan, discussing the legislative language and offering her opinion as to whether it presents a problem for the Administration." Id. Mr. Reed asserts that "[t]he press guidance concerning this issue is privileged because it was created for internal use only."Id.

The Special Master recommends that the Court sustain the privilege claim for the redacted email on page 0124, and for page 0125, as these pages contain discussions regarding what action, if any, the Administration should take regarding legislative proposals relating to a provision in the proposed legislation to prohibit federal assistance to the sale of tobacco products. The Special Master recommends that the Court overrule the privilege claim for page 0126. While the QA may have been for internal use only, it was drafted six months prior to these emails, and, according to the emails, reflected the Administration's position on this issue. Accordingly, it is neither deliberative not predecisional.

With respect to the portion that the Special Master believes is privileged, the Special Master, after reviewing the Challenged Document and Joint Defendants' need arguments, does not believe that Joint Defendants have established need for the protected discussions contained in these emails.

2. PRA079-0223-0225 [CD 13]

"This document is a March 23, 1998 email string among a very large group of White House personnel discussing the preparation of an item for the daily report to the President regarding an announcement by the Vice President — in support of the Administration's call for comprehensive tobacco legislation — of release of a Treasury Department analysis concerning youth smoking and premature deaths (from smoking). The principal email is from Toby Donenfeld to Suzanne Dale, with copies to Mickey Ibarra, Fred DuVal, and Emory L. Mayfield, transmitting the draft daily report item." Brown Decl. at 7; Gonzales Decl. Ex. A at 4. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0225, which contains only a cc list and no substantive information. The Special Master further recommends that the Court sustain the claim of presidential communications privilege for pages 0223-0224, as these pages contain discussions of information to be provided directly to the President in his daily briefing. The Special Master does not believe that Joint Defendants have shown that such discussions are directly relevant to any issue expected to be central to this litigation. Moreover, the discussions in the emails relate in part to information that has been released publicly; hence, Joint Defendants cannot show that this information is not available to them with due diligence from other sources.

3. PRA079-0278-0279 [CD 16]

This document contains two draft June 15, 1998 letters from Jacob Lew to Sens. Kerry and McCain providing the Administration position on amendments to tobacco legislation that would eliminate restrictions on the uses of funds in the State Litigation Settlement Account. Locke Decl. at 9; Gonzales Decl. Ex. A at 4. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege for these documents. These draft letters are from the Acting Director of OMB to two senators, who appear to have requested OMB's opinion on legislation proposed by Senator Gramm. These letters do not appear to have been provided to the President in the course of "performance of (a President's) responsibilities of his office and made in the process of shaping policies and making decisions." In re Sealed Case, 121 F.3d at 744 (internal citation and quotations omitted).

The Special Master further recommends that the Court sustain the deliberative process privilege claim. As a draft, the letters do not yet reflect Administration policy. Because Joint Defendants do have access to any final letters sent to members of Congress on behalf of the Administration, the Special Master does not believe that they have shown need for the drafts.

4. PRA079-0380-0383 [CD 26]

This document comprises "two emails from Cynthia A. Rice to a large group of White House and OMB officials and employees, dated April 26 and 27, 1998, transmitting a draft statement about the President's announcement concerning the release of the new Surgeon General's report on tobacco use among minority groups and the need for comprehensive legislation to reduce youth smoking." Reed Decl. at 12; Gonzales Decl. Ex. A at 4. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0380, as it contains only a cc list and no substantive information. The Special Master does believe that pages 0381-0383 are covered by the presidential communications privilege as they contain draft statements to be made by the Administration in support of certain legislative proposals, and therefore reflect information solicited and received by the President's immediate adviser — Ms. Rice — for the purpose of advising the President regarding proposed Administration policy.

The Special Master further believes that Joint Defendants have not shown need for this document, as they have not demonstrated that it is directly relevant to a central issue in this litigation. Moreover, as this document is a draft of a statement to be made public, similar information likely is available to Joint Defendants with due diligence from other sources.

5. PRA079-0398-0398 [CD 31]

"This document is a May 18, 1998 email from Jeffrey M. Smith to a group of White House officials and employees suggesting a meeting to discuss strategy concerning advancing Administration priorities for tobacco legislation in the Senate." Reed Decl. at 13; Gonzales Decl. Ex. A at 4. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims. The email indicates that a copyee was Skip Stiles, who was the House Science Committee Minority Legislative Director. The privileges are not intended to expand beyond the executive branch. See Judicial Watch, 365 F.3d at 1123; see also In re Sealed Case, 121 F.3d at 745 (both privileges "designed to protect executive branch decisionmaking.").

6. PRA172-4154-4155 [CD 48]

This document consists of two fax cover sheets discussing tobacco proposals given to the White House for review. The first is "undated (but probably May 9, 1999) from Ingrid M. Schroeder to Daniel Mendelson and Richard Turman forwarding tobacco proposals received from outside sources (these are not attached as part of this document) and requesting their review." Locke Decl. at 9-10. The second is dated May 9, 1999, and is "from Cynthia Rice to Joshua Gotbaum and James O'Hara, transmitting the same documents (again, not part of this document) and soliciting review and comment as well as characterizing the documents. Ms. Rice also seeks comments about an `idea' concerning state spending on efforts to reduce tobacco use among children." Id. at 10. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as Ms. Rice and Ms. Schroeder solicit opinions and comments from others on proposals and the idea that" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master has reviewed Joint Defendants' need arguments and concludes that they do not relate to the information contained in these correspondences.

7. PRA172-4368-4380 [CD 65]

Mr. Locke explains that this document consists of "several undated (but probably January 1999) draft questions and answers prepared by OMB Health Division employees as part of the 2000 Budget rollout and as preparation for testimony on the Budget before Congress. The questions and answers concern the following topics: effect of the MSA and 2000 Budget proposals on cigarette prices; `Uses of Additional Tobacco Revenues;' `Medicaid Tobacco Recoupment Policy' (Challenged Document #64 is HHS's suggestions for changes to this draft statement); `Tobacco Taxes and Smuggling;' `Department of Justice Litigation' (not responsive); `Costs of Smoking to Medicare and Other Federal Health Care Programs;' `Protection for Tobacco Farmers;' `FDA Authority to Regulate Tobacco Products;' `Tobacco — Public Health Spending;' `Child Care and Tobacco Funding;' `What is Medicaid Recoupment Paying For?' and `USDA Tobacco User Fee.'" Locke Decl. at 10. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process claim for these proposed questions and answers, as they propose Administration policy and, as drafts, do not reflect any final position. Coastal States, 617 F.2d at 866.

With respect to Joint Defendants' need, the Special Master believes that certain questions of proposed policy are very relevant and unavailable to Joint Defendants from other sources, and that Joint Defendants' need outweighs Plaintiff's concerns of potential chilling effect, particularly as these proposals are not particularly personal in nature. The Special Master therefore recommends that the Court order Plaintiff to produce the following pages to Joint Defendants: page 4368, "Cigarette Price Increases," as it addresses the impact that cigarette price increases could have on youth smoking rates and is relevant to the expert opinion offered in this case; and page 4372, "Tobacco Taxes and Smuggling," which is relevant to the efficacy of proposed remedies here.

The Special Master does not believe that Joint Defendants have shown need for the following pages: page 4369, "Uses of Additional Tobacco Revenues," page 4374, "Costs of Smoking to Medicare and Other Federal Health Care Programs," and page 4377, "Tobacco — Public Health Spending," as Joint Defendants have asserted that these discussions are relevant to their affirmative defenses which are no longer part of this case; page 4373, "Department of Justice Litigation," which is non-responsive; 4378, "Child Care and Tobacco Funding;" 4370-4371, "Medicaid Tobacco Recoupment Policy;" page 4375, "Protection for Tobacco Farmers;" page 4376, "FDA Authority to Regulate Tobacco Products," page 4379, "What is Medicaid Recoupment Paying For?" and 4380, "USDA Tobacco User Fee" as Joint Defendants have not shown how such deliberations are relevant to the claims and defenses in this matter.

8. PRA172-4381-4386 [CD 66]

"This document is a January 29, 1999 email from Richard Turman to Victoria Wachino forwarding an email of the same date from Cynthia Rice to Mr. Turman offering Domestic Policy Council (DPC) edits to certain of the draft questions and answers in Challenged Document #65, including `USDA Tobacco User Fee;' `Cigarette Price Increases;' `Uses of Additional Tobacco Revenues;' `Tobacco Taxes and Smuggling;' and `Medicaid Tobacco Recoupment Policy.'" Locke Decl. at 10. Mr. Locke explains that the "edits contain both typed and handwritten proposed changes." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, which appears to be an earlier-in-time version of some of the questions and answers contained at Challenged Document 65. The Special Master recommended that relevant questions and answers contained in Challenged Document 65 be released; as Joint Defendants therefore will have comparable information available to them, the Special Master does not believe that Joint Defendants are able to show need for the earlier versions of the questions and answers.

9. PRA172-4387-4397 [CD 67]

"This document is a January 29, 1999 email from William G. White to Victoria Wachino responding to changes proposed to the draft questions and answers by the DPC in Challenged Document #66 and includes Mr. White's comments and observations on the DPC-proposed changes." Locke Decl. at 11. Plaintiff claims the deliberative process privilege.

Similar to Challenged Document 66, this document appears to contain earlier-intime versions of the questions and answers encompassed within Challenged Document 65. Consistent with these earlier recommendations, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 67, notwithstanding Joint Defendants' claim of need.

10. PRA172-4398-4399 [CD 68]

This document is undated, but Mr. Reed estimates that it was created in "probably late-1998 or early-1999." Reed Decl. at 13; Gonzales Decl. Ex. A at 4. It is a paper entitled "Tobacco-Related Costs in FY 2000 for Selected Agencies: Sources and Observations," and was "prepared for internal Executive Branch use, provides the bases for Budget estimates, sources for those estimates, observations about how the estimates were derived, and predictions on what those costs will be in out years past FY 2000." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Here, the document is factual in nature, containing cost estimates. Plaintiff has not demonstrated how this document relates to the deliberative process of the agency, nor does it appear to reveal subjective opinions, suggestions, or recommendations of agency employees. It is Plaintiff that "has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States, 617 F.2d at 868 (citation omitted).

11. PRA172-4415-4418 [CD 72]

"This document is a January 26, 1999 fax from Victoria Wachino (for Joshua Gotbaum) to Frank Seidl and Melany Nakagiri providing Mr. Gotbaum's handwritten edits to proposed Treasury Department questions and answers to brief the Treasury Secretary on the 2000 Budget rollout and Congressional testimony. The questions and answers concern the proposed Federal tobacco lawsuit, `Tobacco Settlement and Excess Profits,' and `Tobacco Taxes and Smuggling.'" Locke Decl. at 11. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4415, which is a fax cover sheet with no substantive information. The Special Master further believes that the deliberative process privilege applies to pages 4416-4418. Here, the document contains significant handwritten edits, and reflects the opinions of agency employees in creating proposals for policy positions. Moreover, Joint Defendants are not able to establish need, as these questions and answers appear to be earlier versions of those contained in Challenged Document 65; as the Special Master has recommended that the later versions of the relevant subject be released, Joint Defendants have access to similar material from other sources and their need does not outweigh Plaintiff's privilege interest here.

12. PRA172-4419-4421 [CD 73]

"This document is a January 26, 1999 fax cover sheet from Phil Ellis to Cynthia A. Rice transmitting the Treasury Department's draft proposed press guidance concerning the FY 2000 Budget — `Health Benefits of Tobacco Proposals' and `Why Raise Tobacco Taxes?'" Reed Decl. at 13; Gonzales Decl. Ex. A at 5. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4419, which is a fax cover sheet with no substantive information. With respect to pages 4420-4421, the Special Master believes that, as they are drafts, the press guidance qualifies for the deliberative process privilege.

Joint Defendants' need does outweigh Plaintiff's privilege claim for pages 4420-4421. First, both documents address the impact that the proposed budget legislation will have on youth smoking, which is relevant to the claims and defenses in this matter, particularly the assumptions that the experts have made. Second, the documents are not particularly personal in nature, as they are not ascribed to any particular individual employee, therefore the danger of future chill to agency deliberations is not particularly strong. While Joint Defendants may have access to similar information from other sources, the Special Master believes that overall, the balance tips in favor of disclosing this information to Joint Defendants, notwithstanding Plaintiff's privilege claim.

13. PRA172-4422-4427 [CD 74]

"This document is a January 26, 1999 fax cover sheet from Phil Ellis to Cynthia A. Rice transmitting the Treasury Department's proposed press guidance concerning the FY 2000 Budget, with Ms. Rice's handwritten comments and edits to some of the drafts, which include `Health Benefits of Tobacco Proposals,' `Medicare Tobacco Lawsuit,' `Why Raise Tobacco Taxes?' `Tobacco Settlement and Excess Profits,' and `Tobacco Taxes and Smuggling.'" Reed Decl. at 13; Gonzales Decl. Ex. A at 5. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4422, which is a duplicate of page 4419 of Challenged Document 73. Pages 4423 and 4425 are duplicates of Challenged Document 73 pages 4420 and 4421, respectively. The Special Master therefore recommends that the privilege claims for pages 4423 and 4425 be sustained, but that they be released to Joint Defendants on the basis of need. Pages 4424, 4426 and 4427 are contained within Challenged Document 72 and are protected by the privilege claim as they are draft versions of the questions and answers and contain proposed edits and changes to the questions and answers. Consistent with the recommendation for Challenged Document 72, the Special Master does not believe that Joint Defendants have shown need for pages 4424, 4426, and 4427.

14. PRA172-4431-4435 [CD 75]

Plaintiff has released pages 4433-4435 of this document, and continues to claim the deliberative process privilege for pages 4431-4432. Locke Decl. at 11. The withheld portion "is a January 21, 1999 OMB Health Division fax from Frank Seidl to Victoria Wachino transmitting and providing an explanation of the OMB Veterans' Branch (Toni Hustead) comments about a three-page tobacco briefing paper that is not included within this document (probably briefing materials for the 2000 Budget)." Id. Mr. Locke explains that "Ms. Hustead proposes a short addition to the paper," and that "Mr. Seidl seeks policy review of this proposal." Id.

The Special Master recommends that the Court sustain the privilege claim for pages 4431-4432. These pages contain a proposal (" REDACTED REDACTED ."), and a request for feedback (" REDACTED REDA), and therefore reflects the give and take of the agency deliberative process. The Special Master does not believe that Joint Defendants have shown need for this document. Ms. Hustead's proposed comment essentially relates to spending of revenue resulting from increased tobacco taxes. Joint Defendants have tied such discussions to their affirmative equitable defenses which are no longer part of this case and therefore not sufficiently relevant to justify overcoming Plaintiff's privilege interest.

15. PRA172-4438-4438 [CD 76]

This document consists of "two January 21, 1999 emails concerning an internal statement for OMB use that explains tobacco proposals in the 2000 Budget." Locke Decl. at 11. The first is "from Victoria Wachino to Cynthia Rice, with copies to Joshua Gotbaum, Barry T. Clendenin, Richard Turman, and Frank Seidl, transmitting the draft statement (the draft statement is not part of this document) and asking for DPC guidance on certain of the provisions." Id. The second is "from Ms. Rice to Ms. Wachino and Mr. Turman, with a copy to J. Eric Gould, providing certain suggested changes to the draft document, and requesting information from OMB." Id. Plaintiff claims the deliberative process privilege for both emails.

The Special Master recommends that the Court sustain the privilege claim, as the document contains a predecisional discussion of agency policy, including questions as to what certain aspects of Administration policy are or should be (" REDACTED REDACTED REDACTED "). While the document seeks to explain the Administration's policy vis-á-vis the FY 2000 budget, it is deliberative and predecisonal as to the appropriate and accurate way to do so. See, e.g., Jordan, 591 F.2d at 772-73 (one purpose of the privilege is to "protect the public from premature exposure to discussions occurring before the policies affecting it had been settled upon.").

Joint Defendants have not shown need for discussions relating to tobacco provisions in the budget, as they have access to the President's final budget, and as they have tied discussions relating to spending of tobacco revenues to their affirmative equitable defenses, which are not sufficiently relevant to this matter as they have been dismissed from this case.

16. PRA172-4442-4443 [CD 77]

"This document is a January 15, 1999 email from Patrick Locke to Victoria Wachino forwarding an email of the same date from Mr. Locke to Jennifer Forshey, with a copy to Mary Barth, providing a `detailed breakout of Treasury's scoring' of tobacco revenue policies to be proposed in the upcoming 2000 Budget, including certain Victoria Wachino handwritten notes about these calculations." Locke Decl. at 12. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. This document contains an assessment of tobacco revenues, along with Ms. Wachino's handwritten comments pertaining to the tobacco revenues and questions about the figures relating to the budget proposal. It is therefore deliberative and predecisional.

The Special Master does not believe that Joint Defendants have shown need for documents pertaining to revenue received from tobacco taxes. Joint Defendants have argued that communications relating to revenue received from increases in tobacco prices are relevant to their affirmative equitable defenses. See Mot. App. B at 12. As these defenses are no longer part of this case, such deliberations are not sufficiently relevant to this matter to justify overcoming Plaintiff's privilege interest.

17. PRA172-4452-4456 [CD 79]

Mr. Locke explains that "[t]his document is an undated (but probably January 1999) fax from Victoria Wachino to Joshua Gotbaum transmitting two copies of a revised version of a draft section of the upcoming 2000 Budget on tobacco farmers and programs to reduce youth smoking." Locke Decl. at 12. The document "include[s] proposed handwritten and typed edits and comments to the proposed section." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4452, which is a fax cover sheet with no deliberative information. The Special Master further recommends that the Court sustain the privilege claim for pages 4453-4456, which are a draft with proposed edits and changes to the text; they reflect only the opinions of the agency personnel involved and not of the Administration. The Special Master does not believe that Joint Defendants have shown need for this document, as they have access to the final budget, and they have not demonstrated the relevance of earlier drafts.

18. PRA172-4457-4457 [CD 80]

"This document is a December 23, 1998 email from Patrick Locke to Joshua Gotbaum, with copies to a large group of OMB personnel, that relays Treasury Department estimates of revenues from a possible excise tax change and provides his `best guess' of revenues from an increased tobacco excise tax." Locke Decl. at 12. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, the email contains Mr. Locke's "best guess" of tobacco revenues, and is therefore deliberative and predecisional to the issue of the budget proposal. Joint Defendants have not shown need for this document, as it relates to tobacco tax revenues. Joint Defendants asserted that such information is relevant to their affirmative equitable defenses, which are no longer part of the case and therefore not sufficiently relevant to overcome Plaintiff's privilege interest.

19. PRA172-4458-4459 [CD 81]

This document comprises two emails. The first is dated January 5, 1999, and is "from Cynthia Rice to Patrick Locke requesting guidance from Mr. Locke as to the effect of a possible change in the tobacco excise tax." Locke Decl. at 12. The second is dated January 7, 1999, and is "from Mr. Locke to Joshua Gotbaum and Victoria Wachino, with a copy to Richard Turman, providing his estimate of the data requested by Ms. Rice, based on estimates OMB received from Treasury Department." Id. at 12-13. Plaintiff claims the deliberative process privilege.

The Special Master believes that these communications are deliberative in nature. Ms. Rice asks Mr. Locke to calculate the effect of an alternative proposal; the emails therefore reflect different options being considered by policymakers, and the possible effect of alternative budget proposals on federal revenues. Joint Defendants have not shown need for this document as they have asserted that discussions pertaining to tobacco revenues are pertinent to the affirmative equitable defenses, which are no longer a part of this case.

20. PRA172-4477-4479 [CD 83]

Plaintiff has divided this log entry into two separate documents. The first, Challenged Document 83 (page 4477-4478), consists of two January 5, 1999 emails. The first email is "from Daniel LaPlaca to Daniel Mendelson, with copies to a large group of OMB personnel, providing an estimate of fiscal year 2000 smoking-related costs to the Federal Employees Health Benefits program, including comments and observations about this preliminary estimate, as well as reaction by the Office of Personnel Management (OPM) to the possible use of the preliminary estimate." Locke Decl. at 13. The second email is "from Mr. Mendelson to Joshua Gotbaum and Victoria Wachino, with a copy to Mr. LaPlaca;" it forwards the first email, "suggesting a change to it, and soliciting discussion concerning resolving issues within OPM." Id.

Challenged Document 83A, page 4479, "is a one-page paper dated December 30, 1998, and entitled `Options for Tobacco Presentation,' that includes three options relating to possible expenditures of tobacco-related revenues to be proposed in the 2000 Budget. The paper also includes Victoria Wachino's handwritten notes." Id. Plaintiff claims the deliberative process privilege for the entire log entry.

The Special Master recommends that the Court sustain the privilege claim for Challenged Documents 83 and 83A. The emails at pages 4477-4478 contain continuing discussions of the possible costs of certain programs, with no definitive position reached. Page 4479 contains three different options for a tobacco proposal, and is deliberative in nature. See Coastal States, 617 F.2d at 866 (deliberative documents are those which "weigh the pros and cons of agency adoption of one viewpoint or another."). Joint Defendants have not shown need for this document, as they have argued that communications relating to federal spending of tobacco revenues are relevant to their affirmative equitable defenses, which are no longer a part of this case.

21. PRA172-4485-4487 [CD 84]

"This document is a December 29, 1998 handwritten note from Elena Kagan to Jack Lew transmitting a draft memorandum from Mr. Lew and Bruce N. Reed to the Chief of Staff concerning Budget tobacco policy. Ms. Kagan suggests further changes to the memorandum." Reed Decl. at 14; Gonzales Decl. Ex. A at 5. Mr. Reed explains that the draft relates to "`(1) how the Budget will allocate the proceeds of the Administration's proposed tobacco excise tax increase; (2) how the Administration will handle the recoupment issue; and (3) how the Administration will use funds resulting from a Federal lawsuit against the tobacco companies.'"Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the document is in draft form and therefore represents the opinions of the agency employees involved and not the policy of the Administration. Coastal States, 617 F.2d at 866. The Special Master further believes that Joint Defendants have not shown need for this document. Joint Defendants have argued that communications relating to the Administration's use of funds from tobacco revenues are relevant to their affirmative equitable defenses. As these defenses are no longer part of this case, the Special Master does not believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest.

22. PRA172-4489-4489 [CD 86]

"This document is a December 22, 1998 email from Patrick Locke to Joshua Gotbaum and Victoria Wachino, with copies to Richard Turman, Richard P. Emery, Susanne Lind, and Hugh Connelly, providing his estimates of additional revenue from increasing the per pack excise tax on cigarettes, including the assumptions he uses." Locke Decl. at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document. Here, Mr. Locke provides factual information regarding the effect of certain cigarette tax increases. It is not deliberative in nature. See Paisley v. CIA, 712 F.2d 686, 699 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) ("in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed.").

23. PRA172-4490-4491 [CD 87]

"This document is another version of the draft December 28, 1998 memorandum from Jack Lew and Bruce N. Reed to the Chief of Staff that is described in Challenged Document #84, and includes handwritten edits and a question to Mr. Lew about whether one of the figures in the memorandum is correct." Reed Decl. at 14; Gonzales Decl. Ex. A at 5. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim, as the document contains a series of recommendations for policy made to the President's Chief of Staff for the purpose of formulating policy advice for the President. Moreover, the document is in draft form, as demonstrated by a note in the text of the draft: " REDACTED REDACTED REDACTED REDACTED." Consistent with the recommendation for Challenged Document 84, the Special Master does not believe that Joint Defendants have shown sufficient need to overcome Plaintiff's privilege interest.

24. PRA172-4499-4499 [CD 89]

Mr. Locke explains that "[t]his document is one page of undated handwritten notes prepared by Victoria Wachino concerning possible/contemplated legislation," but that "Ms. Wachino believes that these notes relate not to tobacco or cigarettes, but rather to counter-terrorism." Locke Decl. at 14. Plaintiff claims the deliberative process privilege.

As review of these notes does not suggest that they are related to this matter, but contain Ms. Wachino's subjective impressions regarding legislation relating to counter-terrorism, the Special Master recommends that the Court sustain the privilege claim and find that Joint Defendants have not shown need for this document.

25. PRA172-4500-4501 [CD 90]

"This document is a December 22, 1998 Treasury Department memorandum from John McClelland to Len Burman concerning tobacco excise tax revenue estimates. The memorandum and attached table estimate revenue for three different possible increases in excise taxes on tobacco products." Reed Decl. at 14; Gonzales Decl. Ex. A at 5. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. McClelland provides three different options for cigarette tax increases, with the potential effect of each, to assist in the decisionmaking process. The document therefore "weigh[s] the pros and cons of agency adoption of one viewpoint or another." Coastal States, 617 F.2d at 866. The Special Master further believes that Joint Defendants have not shown need for this document, as they have asserted that communications pertaining to tobacco revenues are relevant to their affirmative equitable defenses, which are no longer part of this case and therefore not sufficiently relevant to overcome Plaintiff's privilege interest.

26. PRA172-4502-4502 [CD 91]

Mr. Reed states that "[t]his document is an undated (but probably late 1998) attachment to an another, unidentified document that estimates tobacco-related costs by certain Executive Branch agencies." Reed Decl. at 14; Gonzales Decl. Ex. A at 5. Plaintiff claims the deliberative process privilege. The Special Master does not believe that Plaintiff, based on the description of the document provided in the Declarations of Mr. Reed and Mr. Gonzales, has met its burden of demonstrating that this document relates to the Administration's deliberative process. Coastal States, 617 F.2d at 868 ("It is also clear that the agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process.") (citation omitted). Further, the information appears to be factual in nature.

27. PRA172-4507-4507 [CD 94]

Mr. Locke explains that "[t]his document is an undated table/paper entitled `Potential Tobacco Initiatives,' with possible/estimated costs for various smoking cessation, prevention, and other initiatives considered for the 2000 Budget. The document includes Victoria Wachino's handwritten notations/comments concerning some of the initiatives." Locke Decl. at 14. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Ms. Wachino provides comments and suggestions to contemplated proposed initiatives, including her recommendations that one proposed initiative was " REDACTED." The Special Master does not believe that Joint Defendants have shown need for this document, as they assert that communications relating to possible spending of tobacco revenues are relevant to their affirmative equitable defenses, which are no longer a part of this case.

28. PRA172-4509-4510 [CD 95]

Mr. Locke attests that "[t]This document is undated, but probably [from] late 1998. It is a draft write-up, with handwritten notes, concerning estimated tobacco-related costs for selected Executive Branch agencies, with internal comments and observations about the costs and estimating assumptions." Locke Decl. at 14. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Here, the document is factual in nature, containing cost estimates. Plaintiff has not demonstrated how this document relates to the deliberative process of the agency, nor does it appear to reveal subjective opinions, suggestions, or recommendations of agency employees. It is Plaintiff that "has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States, 617 F.2d at 868 (citation omitted).

29. PRA172-4511-4511 [CD 96]

Mr. Locke attests that "[t]his document is a duplicate of Challenged Document #94, except with a different set of Joshua Gotbaum's and Victoria Wachino's handwritten edits/comments/questions." Locke Decl. at 14. Plaintiff claims the deliberative process privilege. Consistent with the recommendation for Challenged Document 94, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 96, notwithstanding Joint Defendants' need.

30. PRA172-4513-4513 [CD 97]

Mr. Locke explains that "[t]his document is an undated page of Victoria Wachino's handwritten notes concerning contemplated tobacco-related legislation dealing with, inter alia, tobacco farmers and HHS tobacco activities." Locke Decl. at 15. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the notes contain Ms. Wachino's subjective thoughts. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that these notes bear any relevance to Joint Defendants' asserted need.

31. PRA172-4514-4515 [CD 98]

This document is a November 17, 1998 email from Patrick Locke to Joshua Gotbaum and Daniel Mendelson, and copied to Richard Turman, William G. White, Hugh Connelly, Victoria Wachino, and Gina Mooers, "transmitting and discussing a spreadsheet file he prepared showing net federal revenues from three possible price increases per pack of cigarettes, assuming the MSA takes effect." Locke Decl. at 15. Mr. Locke explains that "[t]he attached spreadsheet shows projected net revenues for 2000-2004 under three different Federal tobacco price increases." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the document contains different options for tax increases, and the potential effect of each, and is therefore deliberative and predecisional in nature. Joint Defendants have not shown need for this document, as it relates to federal revenues received from tobacco taxes, which they have argued is relevant to their since-dismissed affirmative equitable defenses.

32. PRA172-4516-4516 [CD 99]

This document is a November 20, 1998 email from Patrick Locke to Joseph Minarik, and copied to Hugh Connelly, Susanne Lind, Richard P. Emery, and Victoria Wachino. It "provid[es] `rough estimates,' in the form of two options, of the effect of changing the timing of the phased tobacco excise tax increase enacted in the Balanced Budget Act of 1997. Mr. Locke includes in his email an explanation as to why his estimates are preliminary and uncertain." Locke Decl. at 15. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the document provides estimates on two different options for tobacco excise tax increases, and "weigh[s] the pros and cons of agency adoption of one viewpoint or another." Coastal States, 617 F.2d at 866. Joint Defendants have not shown need for this document as their need arguments for discussions pertaining to federal tobacco revenues relate to their affirmative equitable defenses, which are no longer part of this case.

33. PRA172-4524-4525 [CD 101]

This document consists of two December 8, 1998 emails. The first is from Hugh Connelly to Richard Turman and copied to Susanne Lind, Ellen Balis, Patrick Locke, and Elizabeth Rossman, "discussing some of the preliminary numbers and assumptions regarding tobacco being used in preparing the 2000 Budget and seeking policy guidance and additional detail in this area." Locke Decl. at 15. The second email forwards the first, and is "from Mr. Turman to Daniel Mendelson and Joshua Gotbaum, with copies to a large group of OMB personnel . . . noting that the guidance Mr. Connelly seeks is needed for upcoming meetings. Mr. Turman offers a potential response to Mr. Connelly and seeks guidance about how to proceed." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege. Mr. Connelly seeks policy guidance (" REDACTED REDACTED REDACTED REDACTED ."), and Mr. Turman passes the request on to Mr. Mendelson, along with some additional information and insight. The communications are therefore deliberative and predecisional. The Special Master further believes that Joint Defendants have not shown need for this document as they relate to possible tobacco revenues, which Joint Defendants have asserted are relevant to their affirmative equitable defenses, which are no longer part of this case.

34. PRA172-4526-4527 [CD 102]

This document consists of three December 2, 1998 emails discussing certain tobacco analyses done by Patrick Locke. The first is "from Elizabeth Rossman to Mr. Locke, with copies to Susanne Lind, Hugh Connelly, Ellen Balis, and Robert Barker, seeking an explanation of the difference between the estimated revenues that Joshua Gotbaum believes should have resulted from Mr. Locke's analysis and those that actually did result." Locke Decl. at 16. The second is "from Mr. Locke to Ms. Rossman, with copies to Ms. Rossman's addressees and Richard P. Emery, providing his explanation for the difference in the estimated revenues." Id. The third is "from Richard P. Emery to Mr. Gotbaum, commenting upon Mr. Locke's response and seeking Mr. Gotbaum's guidance." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Ms. Rossman states: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED" Mr. Locke and Mr. Emery seek to provide responses to Ms. Rossman's inquiry. The communications are therefore both deliberative and predecisional. Similar to other documents in this section relating to tobacco revenues and the federal budget, the Special Master does not believe that Joint Defendants have shown need for the information contained in this document.

35. PRA172-4529-4529 [CD 103]

Mr. Locke attests that, although this document is undated, it probably was prepared "just prior to November 23, 1998, as it is an earlier version of Challenged Document #107." Locke Decl. at 16. It is a "draft internal paper entitled `Tobacco Mechanism and Scoring Issues,' including Victoria Wachino's handwritten notes about issues still being discussed, and making a proposal for the use of additional revenues anticipated from cigarette tax increases" which "includes a discussion of anticipated recoupment revenues and provides internal guidance concerning certain anticipated scoring questions relating to recoupment." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document appears to have been drafted to provide information for the creation of Administration policy, and includes estimates of revenues from tobacco tax increases. Moreover, the document contains Ms. Wachino's questions and comments to the draft. The Special Master does not believe that Joint Defendants can show need for this document, as their need arguments relate such discussions to their now-dismissed affirmative equitable defenses.

36. PRA172-4539-4540 [CD 106]

This document consists of three emails dated November 24, 1998. The first email is from Patrick Locke to Joshua Gotbaum, and copied to Richard Turman, William G. White, Hugh Connelly, and Victoria Wachino, relating a discussion Mr. Locke had with Phil Ellis and John McClelland about the likely effect of the MSA on cigarette prices for purposes of preparing the 2000 Budget. Locke Decl. at 16. Mr. Locke explains that, in the email, he "discusses the differences in approaches between OMB and Treasury with respect to assumptions and anticipated effects of price increases," and "notes that the Treasury officials seek OMB's guidance as to possible budget proposals, and relates his opinion provided to Treasury in response thereto." Id. The second email is "from Mr. Connelly to Mr. Locke, with copies to Mr. Locke's other addressees, offering his views as to the possible effects of the MSA's Federal legislation offset provision on the Federal Government and the states and suggesting the form that proposed Federal legislation concerning cigarettes should take." Id. at 16-17. The third is "from Mr. Locke to Mr. Connelly, with copies to the same addressees, responding to and offering his differing opinion of the analysis and opinions of Mr. Connelly regarding the effect of the MSA and possible effect of Federal legislation (depending upon its form)." Id. at 17. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process privilege claim, as the document relays discussions among agency employees debating about the impact of the MSA and the manner in which provisions should be interpreted: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for this document as they have asserted that documents pertaining to tobacco revenues are relevant to their now-dismissed affirmative equitable defenses.

37. PRA172-4541-4543 [CD 107]

"This document is a November 23, 1998 paper entitled `Tobacco Mechanism and Scoring Issues,' with an accompanying November 18, 1998 table entitled `Net Revenues from Tobacco Price Increase.'" Locke Decl. at 17. Mr. Locke attests that the "paper is a slightly revised and re-formatted version of Challenged Document #103, without the handwritten comments. The table shows net revenues and per-pack equivalent increases for several possible Federal tobacco policies." Id. Plaintiff claims the deliberative process privilege.

Consistent with the recommendation for Challenged Document 103, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 107. While a final version of Challenged Document 103, the document is still predecisional and deliberative in that it proposes policy and makes recommendations, e.g., " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Also consistent with the recommendation for Challenged Document 103, the Special Master recommends that the Court find that Joint Defendants have not shown sufficient need for this document to overcome Plaintiff's privilege interest.

38. PRA172-4544-4544 [CD 108]

This document consists of two November 20, 1998 emails. The first is "from Victoria Wachino to Joseph Minarik, with a copy to Ophelia D. West, relating information from Joshua Gotbaum about a proposal concerning tobacco taxes discussed by Jacob Lew and Bruce Reed and a request from Mr. Lew for estimates of Federal revenues resulting from that proposal." Locke Decl. at 17. The second is "from Mr. Minarik to Patrick Locke and Hugh Connelly, with copies to Susanne Lind and Richard P. Emery, providing more information about the request from Mr. Lew, including the assumptions to be used in trying to estimate the revenue." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document as it discuses policy options for changing the tobacco tax and a request from Mr. Minarik to Mr. Locke for him to " REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for this document, as they have asserted that discussions relating to tobacco revenues are relevant to their affirmative equitable defenses, which are no longer part of this case.

39. PRA172-4552-4552 [CD 110]

Although this document is undated, Mr. Locke hypothesizes that is from "probably late 1998." Locke Decl. at 17. It is a "draft paper entitled `Tobacco Issues' that describes and discusses OMB's then-current options for the upcoming 2000 Budget with respect to tobacco recoupment and tobacco revenues, and possible funds available therefrom for expenditures." Id. Mr. Locke explains that "[t]he paper includes the internal guidance on recoupment issues found in Challenged Documents #103 and #107." Id. Plaintiff claims the deliberative process privilege.

Consistent with the recommendation for Challenged Documents 103 and 107, the Special Master recommends that the Court sustain the privilege claim for this document, notwithstanding Joint Defendants' claimed need.

40. PRA172-4554-4554 [CD 111]

"This document is a November 18, 1998 email from Patrick Locke to Joshua Gotbaum, with copies to Richard Turman, Hugh Connelly, and Victoria Wachino, explaining an attached spreadsheet and table on possible Federal revenues from different levels of increased tobacco excise taxes. (The discussed spreadsheet and table are not part of this document.)." Locke Decl. at 18. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it serves to provide additional information for a spreadsheet with different tobacco excise tax options, and is therefore deliberative and predecisional in nature. The Special Master further recommends that the Court reject Joint Defendants' arguments of need as they have not shown how discussions such as this pertain to the remaining claims and defenses in this matter.

41. PRA172-4608-4609 [CD 117]

"This document is a November 15, 1998 email from Patrick Locke to Joshua Gotbaum, with copies to Richard Turman and Hugh Connelly, transmitting a new version of a table showing expected Federal revenue (2000-2004) from a tobacco price increase." Locke Decl. at 18. The document is a partial duplicate of Challenged Document #116, without the handwritten notes. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it is deliberative and predecisional in nature: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Joint Defendants have not shown need as they have asserted that discussions relating to tobacco revenues relate to their now-dismissed affirmative equitable defenses.

42. PRA172-4629-4633 [CD 118]

This document consists of "draft tables dated November 13, 1998, some with Victoria Wachino's handwritten notes, showing expected Federal revenues from different levels of increased tobacco excise taxes, along with spending options from additional tobacco revenue." Locke Decl at 18. It is a partial duplicate of Challenged Document 116, and also contains tables entitled "Industry Payments and per Pack Equivalents;" "Net Revenues from Tobacco Price Increase;" and "How a Proposal to Waive Federal Medicaid Recoupment Could Be Scored Assuming a 47-State Settlement," with handwritten notes and edits. Id. Plaintiff claims the deliberative process privilege.

Consistent with the recommendation for Challenged Document 116, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 118, notwithstanding Joint Defendants' asserted need.

43. PRA172-4663-4665 [CD 121]

This document is undated, but Mr. Locke believes that it is from "probably late 1998," and is a "draft memorandum from Joshua Gotbaum and Daniel Mendelson to Jacob Lew, with copies to Sylvia Mathews, Richard P. Emery, and Charles E. Kieffer, presenting, as background for a meeting the next day on tobacco in the 2000 Budget, options for the size and use of increased tobacco receipts." Locke Decl. at 19. The document includes handwritten edits, and attaches "two copies of a table entitled `Receipts from Tobacco Legislation,' that presents anticipated revenues from three different possible cigarette tax increases." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process privilege claim, as the document contains alternative proposals for policy options: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The discussions are therefore both deliberative and predecisional in nature. Moreover, as Joint Defendants have argued that discussions relating to anticipated tobacco revenues and use of those funds are relevant to their affirmative equitable defenses, which are no longer part of this case, the Special Master does not believe that Joint Defendants have shown need for this document sufficient to overcome Plaintiff's privilege interest.

44. PRA172-4670-4675 [CD 123]

Mr. Locke explains that "[t]he first two pages of this document are a different version of the late 1998 memorandum described in Challenged Document #121 and a copy of the table attached thereto. Also part of this document are four pages of draft briefing material (with handwritten edits) prepared by the Treasury Department in February 2000 concerning the justification for raising tobacco taxes and the relationship of tobacco taxes and smuggling." Locke Decl. at 19. Plaintiff claims the deliberative process privilege.

The Special Master has reviewed the document and finds that it is indeed related to Challenged Document 121 and similar in nature and purpose. Accordingly, consistent with the recommendation for Challenged Document 121, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 123, notwithstanding Joint Defendants' need assertions.

45. PRA172-4646-4679 [CD 124]

"This document consists of the draft Treasury Department-prepared press guidance concerning the justification for raising tobacco excise taxes (two copies) and tobacco taxes and smuggling, with handwritten edits and comments." Reed Decl. at 15; Gonzales Decl. Ex. A at 5. Mr. Reed explains that although the "document is dated February 2, 2000," it "clearly was originally prepared much earlier — late 1998 or early 1999."Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the two versions of the draft documents each contain extensive handwritten notations (apparently by different individuals) to the draft questions and answers contained in the document. The document therefore reflects the personal opinions of the authors rather than the policy of the Administration. Coastal States, 617 F.2d at 866.

With respect to Joint Defendants' claimed need, while the issues of the intent behind raising tobacco taxes and the potential impact on smuggling bear some relevance to this case, the Special Master believes that the balance tips in favor of nondisclosure. Here, release could serve to chill future agency discussions and inaccurately reflect the actual position of the government. See Jordan, 591 F.2d at 772-73 (one purpose of the privilege is to "protect the public from the confusion that would result from premature exposure to discussions occurring before the policies affecting it had actually been settled upon.").

46. PRA172-4680-4685 [CD 125]

Mr. Locke attests that "[t]his document consists of three fax cover sheets dated February 2 and 3, 2000, transmitting and discussing three attached pages of tobacco briefing materials prepared initially by the Treasury Department and edited by DPC and OMB. (These pages, which were prepared by Treasury in January 2000, appear to be from a larger document originally provided by Treasury to DPC and OMB.) The edited pages (with handwritten edits by Cynthia Rice) are part of a briefing book tobacco writeup on tobacco excise taxes, a youth smoking assessment, and tobacco taxes and smuggling." Locke Decl. at 19. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 4680-4682, as these pages are facsimile cover sheets that do not contain substantive, deliberative information, and merely forward the substantive information contained within pages 4683-4685, which are a partial draft of the questions and answers contained within Challenged Document 124. Consistent with that recommendation, the Special Master recommends that the Court sustain the privilege claim for pages 4683-4685, notwithstanding Joint Defendants' asserted need.

47. PRA172-4689-4691 [CD 126]

"This document is a January 21, 2000 draft alternative youth smoking proposal — penalty assessment based upon estimated profit for each youth smoker, presenting pros and cons of the proposal. Attached are tables with estimates of revenues from such an assessment and of revenue effects of increasing tobacco taxes and levying a youth smoking assessment." Reed Decl. at 15; Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege claim. Here, the document contains a description of the current proposal for a youth smoking assessment, as well as a possible alternative proposed penalty, along with the author's candid comments on the alternative proposal: " REDACTED REDACTED REDACTED REDACTED REDACTED ." Therefore it is predecisional and deliberative in nature.

The Special Master does believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. First, it is relevant to the issue of youth smoking and the possible impact that assessments will have on the youth smoking figures in the future, which Joint Defendants need to assess assumptions Plaintiff's experts have made on these topics. See Mot. App. B at 13. Second, Plaintiff has not identified an author for this document and the document is not personal in nature; therefore, the Special Master believes that the danger of future chill is not significant. Finally, Joint Defendants do not have access to this information from other sources. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

48. PRA172-4693-4699 [CD 127]

"This document is a January 13, 2000 email from Frank Seidl to Cynthia Rice and Victoria Wachino, with copies to Richard Turman, J. Eric Gould, and Eugenia Chough, forwarding an email of the same date from Patrick Locke to Mr. Seidl, transmitting edits to a draft description of tobacco policies in the 2001 Budget." Locke Decl. at 19-20. The document includes "(a) a preliminary table entitled `Estimated Revenue Effects of Increasing Tobacco Taxes and Levying a Youth Smoking Assessment;' (b) a draft table, `Major Tobacco-Related Proposals in the Budget' (two copies); (c) two draft tables entitled `Youth Smoking Assessment' (options 1 and 2), with handwritten notes; and (d) a page of [Victoria Wachino's] handwritten notes concerning the calculation of the youth smoking assessment presented in the tables." Id. at 20. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these documents, which contain drafts of sections to be included in the 2001 Budget, and include Ms. Wachino's comments, suggestions and questions regarding the drafts. The Special Master does not believe that Joint Defendants have shown need for earlier drafts of budget documents when they have access to the final version.

49. PRA172-4701-4701 [CD 128]

"This document is an undated (but probably early 2000) page of Victoria Wachino's handwritten notes that appear to be a continuation of the notes about the calculation of the youth smoking assessment described in Challenged Document #127." Locke Decl at 20. Plaintiff claims the deliberative process privilege. Consistent with the recommendation for Challenged Document 127, the Special Master recommends that the Court sustain the privilege claim. Further, as stated above, the Special Master does not believe that Joint Defendants have shown need for Ms. Wachino's comments regarding the budget proposals.

50. PRA172-4703-4703 [CD 129]

"This document is an undated (but probably early 2000) draft of a table for the 2001 Budget entitled `Receipts Impact of Tobacco Legislation,' showing projected receipts from an excise tax increase and a youth smoking assessment, with Victoria Wachino's handwritten comments and questions concerning this table." Locke Decl. at 20. Plaintiff claims the deliberative process privilege.

This document is similar in nature to Challenged Document 127. Consistent with that recommendation, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 129. Further, the Special Master does not believe that Joint Defendants have shown need for Ms. Wachino's comments regarding the budget proposals.

51. PRA172-4709-4719 [CD 130]

"This document is a January 11, 2000 email from Phil Ellis, Treasury, to a large group of Treasury Department, White House, and OMB personnel, transmitting and discussing a revised spreadsheet of options for youth smoking assessments. Mr. Ellis explains the revisions and corrections made from the earlier version, as well as the practical effects of these changes." Locke Decl. at 20. Mr. Locke explains that the email includes Victoria Wachino's handwritten notes, and "[t]he attached tables show calculations of anticipated revenues from the options for youth smoking assessments, including several duplicate pages." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege as it contains different suggested options for youth smoking assessments, along with Ms. Wachino's handwritten comments and deliberations. The document therefore reflects the give and take of the agency deliberative process. The Special Master does believe, however, that the issue of youth smoking rates, particularly the impact that cigarette price changes may have on youth smoking, is very relevant to this matter, particularly the monetary remedy sought by the government and analyzed by Plaintiff's experts. See Mot. App. B at 13. Therefore, based on the relevance of the information and the Joint Defendants' inability to discover similar information from other sources, the Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest, and its concerns regarding future timidity in governmental policy discussions, and recommends that the Court order Plaintiff to produce this document to Joint Defendants.

52. PRA172-4720-4727 [CD 131]

"This document is a January 10, 2000 email from Frank Seidl to Joshua Gotbaum, Daniel Mendelson, Victoria Wachino, and Molly O'Malley, with copies to a large group of OMB personnel transmitting, for their review, and discussing the latest version of the text in the `Strengthening Health Care' chapter of the 2001 Budget that deals with cigarette price increases and youth smoking." Locke Decl. at 21. Mr. Locke explains that, in the email, "Mr. Seidl asks whether the text set forth in his email needs to be revised. Mr. Seidl also attaches a draft budget table with anticipated revenue from the budget's proposed tobacco policies." Id. "The document also includes (not part of the email) five tables showing revenues from different tobacco policies, similar to the tables described in Challenged Document #130." Id. Plaintiff claims the deliberative process privilege.

This document is similar in nature to Challenged Document 130. Therefore, while the Special Master believes that the document qualifies for the deliberative process privilege, the Special Master believes that Joint Defendants have established sufficient need for the document. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

53. PRA172-4728-4728 [CD 132]

"This document is January 7, 2000 email from John McClelland to a large group of Treasury Department, White House, and OMB personnel transmitting and discussing estimates of net revenue raised by two cigarette excise tax proposals. (The referenced attachments are not included with this document.)" Reed Decl. at 15; Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as the email discusses the possibilities for raising revenue under two proposals associated with youth smoking. It is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this correspondence. Unlike documents pertaining to the effect of price increases on youth smoking rates, this document addresses revenues to be raised in the event that certain targets are not met. It is therefore focused more on revenue issues then youth smoking issues. As Joint Defendants have argued that documents pertaining to the impact of tobacco policy on the federal budget are relevant to their affirmative equitable defenses, and as such defenses have been dismissed from this case, the Special Master does not believe that this document is sufficiently relevant to justify overcoming Plaintiff's privilege claim.

54. PRA172-4731-4734 [CD 133]

"This document is a January 6, 2000 email from Cynthia Rice to Joshua Gotbaum, Victoria Wachino, and Richard Turman, with copies to J. Eric Gould and Eugenia Chough, relaying guidance from Bruce Reed about the path through time of tobacco-related revenues for the 2001 Budget. The document also includes (not part of the email) two draft papers: (a) `Tobacco [Youth Smoking Reduction] Options for [Possible Inclusion in] the FY 2001 Budget' and (b) a January 3, 2000 preliminary Treasury table `Estimated Revenue Effects of Increasing Tobacco Taxes.'" Locke Decl. at 21. Victoria Wachino's handwritten comments are included on the email and paper. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as the documents contain policy proposals for the FY 2001 Budget. Such proposals are deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have not shown need for this document as they have asserted that discussions relating to tobacco revenues are relevant to their affirmative equitable defenses, which are no longer part of this case.

55. PRA172-4735-4738 [CD 134]

This document is a series of emails sent January 3-6, 2000 among White House and Treasury personnel. Mr. Reed describes them as follows: "(a) January 5, 2000, John McClelland to Len Burman transmitting two preliminary January 7, 2000 tables — `Estimated Revenue Effects of Increasing Tobacco Taxes and Levying the Youth Assessment' and `Estimated Revenue Effects of Increasing Tobacco Taxes;' (b) Mr. Burman to John McClelland, responding to (a) and providing a different per pack tax to be used; (c) John McClelland to Mr. Burman, responding to (b) and transmitting a revised table; (d) Mr. Burman to Jason Furman, forwarding (a)-(c); (e) Mr. Furman to Bruce N. Reed, with a copy to Cynthia A. Rice, transmitting and commenting on the tables; and (f) Ms. Rice to Joshua Gotbaum, Victoria A. Wachino, and Richard Turman, transmitting (a)-(e)." Reed Decl. at 15-16; Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process privilege.

Similar to other documents addressed in this section, these charts and emails address the impact that increased tobacco taxes and/or youth smoking assessments would have on federal revenues. As the discussions are preliminary in nature and propose different policy options, they are protected by the deliberative process privilege. Moreover, Joint Defendants have not shown need for these discussions, as they contended that these deliberations are relevant to their affirmative equitable defenses, which are no longer part of this case.

56. PRA172-4739-4742 [CD 135]

"This document is a January 7, 2000 email from Phil Ellis to a group of Treasury, White House and OMB personnel transmitting youth smoking estimates for two options (concerning increased excise taxes and youth smoking assessment). Mr. Ellis includes an explanation for certain changes from earlier versions and discusses problems raised by these options." Locke Decl. at 21. "The attached tables include extensive handwritten notes by Victoria Wachino about the calculations and revenues in the tables." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. In addition to Ms. Wachino's extensive handwritten comments, the document contains the observations and opinions of Treasury employees on different policy options: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED Joint Defendants have not shown need for this document as it addresses potential revenues that could be raised from tobacco policies and they have asserted that such discussions are related to their affirmative equitable defenses, which are no longer part of this case.

57. PRA172-4743-4748 [CD 136]

"This document is a January 7, 2000 email from Joseph Minarik to Victoria Wachino relating a possible path through time for tobacco-related revenues for the 2001 Budget. Also included in the document (but not part of the email) are draft Treasury tables showing projected revenues from increased tobacco taxes and youth smoking assessments. The email and some of the tables include handwritten notes and comments." Locke Decl. at 22. Plaintiff claims the deliberative process privilege.

Similar to other documents discussed in this section, this email and its attachments address estimated revenue effects from an increase in tobacco taxes. The Special Master therefore believes that the document is privileged. The Special Master further believes that Joint Defendants have not shown need for this document, as their need arguments relate such discussions to their affirmative equitable defenses which are no longer part of this case.

58. PRA172-4751-4751 [CD 138]

"This document is a January 7, 2000 email from Jason Furman to Phil Ellis, with copies to a large group of Treasury Department and OMB personnel, offering his suggestion for a change in the approach to calculating the effect of different levels of youth smoking assessments." Reed Decl. at 16; Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Furman suggests a policy option: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED," and implicitly seeks feedback on this proposal. It is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document, as it contains discussions relating to tobacco revenues, which Joint Defendants have argued is relevant to their now-dismissed affirmative equitable defenses.

59. PRA172-4752-4753 [CD 139]

This document consists of two January 7, 2000 emails. The first is from "Cynthia A. Rice to Phil Ellis, asking the Treasury Department when the White House and OMB can expect revenue estimates for (1) increased excise taxes, and (2) increased excise taxes coupled with a per child smoker assessment." Reed Decl. at 16; Gonzales Decl. Ex. A at 6. The second is from "Mr. Ellis to a large group of Treasury Department, White House, and OMB personnel, discussing a spreadsheet [not part of this document] containing the preliminary estimates of youth smoking levels and assessment options under Ms. Rice's email. Mr. Ellis includes a number of comments and observations in explanation of his preliminary estimates." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process privilege claim. Here, Mr. Ellis provides information regarding his "preliminary estimates REDACTED REDACTED REDACTED REDACTED REDACTED." The document therefore reflects the give and take of the agency's deliberative process. The Special Master further believes that Joint Defendants have not shown need for this document, which relates to possible government revenues from tobacco. Joint Defendants have asserted that such discussions are relevant to their affirmative equitable defenses, which are no longer part of this case and therefore not sufficiently relevant to the remaining claims and defenses to justify overcoming Plaintiff's privilege claim.

60. PRA172-4795-4796 [CD 141]

"This document is a December 12, 1999 paper entitled `Tobacco Proposals.' The paper presents four options for reducing youth smoking by raising the price of cigarettes and providing tobacco companies with incentives to stop marketing their products to children." Reed Decl. at 16; Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege as it presents policymakers with four possible options for reducing youth smoking by raising cigarette prices. It therefore "weigh[s] the pros and cons of agency adoption of one viewpoint or another." Coastal States, 617 F.2d at 866. The Special Master further believes that Joint Defendants have not shown need for this document. Unlike deliberations that relate to the actual or potential effect that price increases may have on the incidence of youth smoking, the discussions contained here focus on revenue that will be raised under different scenarios if youth smoking targets are not met. As Joint Defendants have asserted that documents pertaining to the impact that legislative decisions may have on federal revenues are relevant to their affirmative equitable defenses, which are no longer a part of this case, the Special Master does not believe that Joint Defendants are able to overcome the interest that Plaintiff has in its privilege.

61. PRA172-4797-4802 [CD 142]

"This document is a December 12, 1999 email from Cynthia Rice to Joshua Gotbaum and Victoria Wachino, with copies to J. Eric Gould and Eugenia Chough, discussing two proposals relating to providing assistance to tobacco farmers." Locke Decl. at 22; Gonzales Decl. Ex. A at 6-7. The email attaches "(a) `DPC Tobacco Revenue Options,' presenting three options for increased tobacco-related revenue, including pros and cons of each option; (b) `Youth Smoking Proposal in the FY 2001 Budget,' offering a proposal for possible inclusion in that Budget; and (c) two pages from a larger document, presenting a table showing options for increased revenue from higher excise taxes and assessments, discussing increasing chances for congressional acceptance of the 2001 Budget tobacco proposals, discussing strategy for responding to possible tobacco company reactions to proposed legislation (if enacted), and discussing how to deal with anticipated Congressional Budget Office views of how to score the Administration's tobacco penalty proposals." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege, as Plaintiff has not demonstrated how this information was solicited and received by a high level presidential advisor in the course of his or her duties of advising the President. In re Sealed Case, 121 F.3d at 742; see also Judicial Watch, 365 F.3d at 1116 (noting that the presidential communications privilege can extend to the President's "immediate White House advisers only" for preparing advice for the President.). Rather, the deliberative process privilege more appropriately applies as the document contains policy proposals for tobacco revenues and tobacco farmers, as well as the pros and cons of particular policies. The Special Master does not believe that Joint Defendants have shown need for this document as it relates to federal tobacco revenues which Joint Defendants have argued are relevant to their now-dismissed affirmative equitable defenses.

62. PRA172-4803-4805 [CD 143]

"This document is a December 6, 1999 email from Cynthia A. Rice to Joshua Gotbaum and Daniel Mendelson, with copies to J. Eric Gould and Eugenia Chough, following up on conversations between Bruce N. Reed and Jack Lew as to what proposals the Administration will make concerning tobacco and requesting review of and comment on suggestions for new ways to present proposals. This email presents proposals, including various options, for both excise tax increases and lookback penalties." Reed Decl. at 17; Gonzales Decl. Ex. A at 7.¹⁴ Plaintiff claims the deliberative process privilege.

14 Mr. Reed notes that "Page 4805, entitled `Talking Points on Tobacco Litigation/VA,' does not belong with this document and is moved to the NR log, as it deals with funding the federal lawsuit." Reed Decl. at 17.

The Special Master recommends that the Court sustain the privilege claim for pages 4803-4804, as they contain suggested alternative proposals for tobacco price increases and a state lookback for youth smoking reduction targets. The pages are therefore deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have not shown need for these pages as they have focused their arguments for communications such as this on their affirmative equitable defenses, which are no longer part of this case. The Special Master therefore does not believe that pages 4803-4804 are sufficiently relevant to the remaining claims and defenses to justify overcoming the privilege claim.

63. PRA172-4835-4835 [CD 144]

This document consists of three emails "discussing a Rep. Boucher proposal to exclude certain payments to tobacco farmers from taxation." Locke Decl. at 22. The first is only a partial email and is dated "October 26, 1999, from Joseph Minarik to Lisa Kountoupes, with copies to an unidentified group, raising the Treasury Department's and his concerns with the proposal." Id. The second is dated October 27, 1999 and is from Bruce Reed to Joseph Minarik, with copies to an unidentified group, responding to the first "and offering his analysis as to how the Administration might respond to the proposal." Id. The third email forwards the first two and is dated October 27, 1999, and is from Cynthia Rice to Joshua Gotbaum and Victoria Wachino, "asking OMB to undertake certain further work with respect to formulating an Administration response to the proposal." Id. at 22-23. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the Administration representatives discuss a possible tax policy, and Ms. Rice asks, " REDACTED REDACTED REDACTED REDACTED REDACTED" The communications therefore reflect discussions of possible agency policy. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that Joint Defendants have shown need for communications relating to tobacco tax policy.

64. PRA172-4874-4874 [CD 149]

"This document is an October 28, 1999 email from Cynthia A. Rice to Joshua Gotbaum, Victoria A. Wachino, and Richard Turman, with copies to J. Eric Gould and Eugenia Chough, providing Ms. Rice's interpretation/analysis of a Sen. Harkin proposal for a youth smoking assessment, discussing a possible strategy for proceeding further concerning the proposal, and discussing possible concerns within the Executive Branch about the proposal." Reed Decl. at 17; Gonzales Decl. Ex. A at 7. Plaintiff claims the deliberative process and presidential communications privileges for this document.

Communications involving high-level Presidential advisors made for the purpose of soliciting and receiving information to formulate advice to be given to the President are presumptively privileged. Here, however, these advisors have roles in the Administration aside from advising the President. Plaintiff has not demonstrated how the information discussed was for the purpose of advising the President. See In re Sealed Case, 121 F.3d at 752 ("If the government seeks to assert the presidential communications privilege in regard to particular communications of these `dual hat' presidential advisers, the government bears the burden of proving that the communications occurred in conjunction with the process of advising the President."). Rather, the email contains policy discussions regarding penalties designed to reduce youth smoking that are better classified under the deliberative process privilege. Therefore, the Special Master recommends that the Court overrule the presidential communications privilege and sustain the deliberative process privilege.

The Special Master further recommends that the Court find that Joint Defendants' need does not outweigh Plaintiff's privilege interest. Here, the discussions address penalties that should be imposed if youth smoking targets are not met. Joint Defendants have demonstrated the relevancy of communications that address how to reduce youth smoking and how certain penalties can impact youth smoking, but not discussions addressing penalties to be imposed if targets are not met.

65. PRA172-4913-4914 [CD 155]

This document is a partial duplicate of Challenged Document #144. It consists of "four emails discussing a Rep. Boucher proposal to exclude certain payments to tobacco farmers from taxation: (a) October 26, 1999, from Lisa Kountoupes to a large group of White House and OMB personnel, relating her conversation with Rep. Boucher and seeking guidance as to what the Administration position is or should be; (b) October 26, 1999, from Joseph Minarik to Ms. Kountoupes, with copies to an unidentified group, raising the Treasury Department's and his concerns with the proposal; (c) October 27, 1999, from Bruce Reed to Mr. Minarik, with copies to an unidentified group, responding to (b) and offering his analysis as to how the Administration might respond to the proposal; and (d) October 27, 1999, from Robert L. Nabors to Victoria Wachino, forwarding (a)-(c) for her information." Locke Decl. at 23. Plaintiff claims the deliberative process privilege.

As Plaintiff notes, this document is a partial duplicate of Challenged Document 144; Challenged Document 155 is the continuation of Mr. Minarik's email, along with an email from Ms. Kountoupes that seeks information: " REDACTED " Consistent with the recommendation for Challenged Document 144, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 155, notwithstanding Joint Defendants' assertion of need.

66. PRA172-4921-4926 [CD 157]

This document is an October 19, 1999 email from Cynthia Rice to Joshua Gotbaum and Daniel Mendelson, with a copy to J. Eric Gould, discussing several tobacco-related items and attaching certain documents. Mr. Locke explains that the email concerns discussions of "how (legally) to include a particular provision in an appropriations bill; preparing a calculation of lives saved based upon a specific cigarette price increase; discussing various revenue options for possible inclusion in legislation; funding the Department of Justice lawsuit (non-responsive); and Department of Justice concerns about lawsuit-related discovery matters (non-responsive)." Locke Decl. at 23. Also on the email are Victoria Wachino's handwritten notes about some of the items discussed in the email. Mr. Locke further states that, "[i]ncluded in the document (but not necessarily part of the email) are the following tables and papers: (a) "Youth Smoking Assessment" — calculation of revenues from different proposed penalties and taxes; (b) "Tobacco Tax Options" — discussion of different possible taxes; and (c) "Providing On-Going Incentives to Reduce Underage Smoking," discussing two options for a youth smoking assessment and comparing those two options." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Page 4921 contains Ms. Rice's email with observations, opinions and questions about certain tobacco issues. Pages 4922-4926 contain different policy options suggested for the purpose of reducing youth smoking. The documents are deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have shown need for this information. The options portion addresses proposed penalties to be assessed against the industry; Joint Defendants have not shown need for such information. Page 4921 addresses issues involving the federal tobacco litigation, which is non-responsive, as well as issues pertaining to tobacco taxes and federal tobacco revenue. As previously discussed, the Special Master does not believe that Joint Defendants have shown need for such discussions.

67. PRA172-4927-4929 [CD 158]

"This document is a January 15, 1999 email from Patrick Locke to Victoria Wachino forwarding an email of the same date (only part of which appears in the document) from Mr. Locke to Jennifer Forshey, with a copy to Mary Barth, providing the Department of Treasury's estimate of revenues from 1999 through 2004 based upon different revenue-increasing options being considered for the 2000 Budget." Locke Decl. at 24. Mr. Locke explains that, "[i]ncluded in the document (but not part of the emails) are two different versions of an October 20, 1999 table entitled `FY 2000 Possible Offsets,' presenting possible/projected revenues/savings from various potential sources, some tobacco-related and others not."Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, the document contains a proposal for a tax increase on tobacco, with projections of the resulting revenues: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The attached charts also contain different possible budgetary offset options. The document is therefore deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have shown need for this document. Here, the discussions address the potential impact of tobacco and other revenues on the federal budget; Joint Defendants have claimed that such discussions are relevant to their affirmative equitable defenses. As these defenses are no longer part of this case, the Special Master does not believe that these discussions are sufficiently relevant to justify overcoming Plaintiff's privilege interest.

68. PRA172-4948-4954 [CD 167]

Although this document is undated, Mr. Locke believes that it is "probably [from] mid-1999." Locke Decl. at 24. It "discusses the tax deductibility of damage payments, including the current law treatment, the rationale for that treatment, the proposed treatment of damage payments by tobacco companies in the McCain bill, proposals in the 2000 Budget to change the general treatment of damage payments, and a related Congressional proposal." Id. Plaintiff claims the deliberative process and attorney-client privileges.

The Special Master recommends that the Court overrule the privilege claims. First, with respect to the deliberative process claim, Plaintiff bears the burden of demonstrating how communications claimed protected relate to an agency's deliberative process. Coastal States, 617 F.2d at 868. Here, Plaintiff claims privilege to an undated document; Plaintiff has not identified an author, nor the context in which the document was created or used. The document is factual and informative in nature and, while it reflects to some extent the opinion of the unidentified author, it does not contain policy options or recommendations. In these circumstances, there is little chance that disclosure would chill future communications. With regard to the attorney-client privilege claim, Plaintiff has not demonstrated how this document contains or reveals confidential client communications made to an attorney for the purpose of receiving legal advice.

69. PRA172-4958-4966 [CD 169]

Plaintiff has released page 4966, but claims the deliberative process privilege for pages 4958-4965, which "is an October 21, 1999 memorandum from Phil Ellis to Cynthia A. Rice, transmitting and discussing briefly the following tobacco-related papers: (a) draft press guidance intended to explain the change in Administration estimates as to the number of teen smokers and premature deaths that would be prevented under the Administration's proposals; (b) two pages of explanation concerning attached tables estimating likely cigarette price increases and reductions in smoking under the MSA, state tobacco price increases, and the President's tobacco proposals in the Budget; and (c) two tables showing the effect on teen smoking of the President's Budget proposals, the MSA, and state tax increases." Reed Decl. at 17; Gonzales Decl. Ex. A at 7.

The Special Master recommends that the Court overrule the privilege claim. Here, it appears that the documents were created to support or explain the President's tobacco proposal; therefore they relate to policy decisions already made, and not to policy deliberations sought to be created.

70. PRA172-4980-4983 [CD 170]

Mr. Reed attests that

[t]his document is a June 23, 1999 email from Cynthia A. Rice to Joshua Gotbaum, Daniel Mendelson, and Richard Turman, forwarding and discussing briefly an email of the same date from Mark McClellan, Treasury, to Ms. Rice, which in turn responds to a June 22, 1999 email from Ms. Rice to Mr. McClellan, and Jim O'Hara, with copies to a group of White House and OMB officials, relating a request for Administration technical assistance from Sen. Harkin for certain information and asking Treasury for its guidance and assistance with respect to this request. In his response, Mr. McClellan forwards and discusses a one-page memo providing preliminary estimates of revenues from a penalty assessed on tobacco companies based upon numbers of teen smokers. Mr. McClellan discusses and explains the attached memorandum, and provides guidance and information to Ms. Rice to assist her in responding to possible criticisms of the Treasury estimate. In her June 23, 1999 email, Ms. Rice seeks guidance from the OMB addressees with respect to what further information/assistance might be provided to Sen Harkin.

Reed Decl. at 18; Gonzales Decl. at 7-8. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4982, which contains only a file attachment and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 4980-4981 and 4983. These pages contain emails requesting information regarding proposals for tobacco penalties for youth smoking and discussing estimates of tobacco revenues, as well as changes made to prior estimates. They are therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for communications regarding federal tobacco revenues, as they have asserted that such discussions are relevant to their affirmative equitable defenses, which are no longer part of this case.

71. PRA172-5031-5031 [CD 177A] ¹⁵

15 Plaintiff treats Challenged Document 177 as two separate documents in two separate sections. Challenged Document 177, page PRA172-5030 is addressed by Mr. Locke in the Recoupment section, and Challenged Document 177A, page PRA172-5031 is addressed by Mr. Locke in the Legislation section.

"This document is a June 7, 1999 draft paper entitled `FY 2000 Tobacco Proposals' that offers three approaches/options for raising revenue from youth smoking penalties and tobacco taxes, including preliminary estimates as to the amount of revenue that each would raise." Locke Decl. at 24. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, which contains three options for increasing revenue and reducing youth smoking, and is therefore deliberative and predecisional in nature. The Special Master further recommends that the Court find that Joint Defendants have not established need for this document. Here, the focus of the options is on revenue that will be raised if youth smoking is not reduced, and not on methods to reduce youth smoking. Joint Defendants have argued that deliberations relating to the impact of tobacco revenue on the federal budget are relevant to their affirmative equitable defenses; as these defenses are no longer part of this case, the Special Master does not believe that these communications are sufficiently relevant to Joint Defendants' need to justify overcoming Plaintiff's privilege interest.

72. PRA172-5032-5035 [CD 178]

This document consists of a string of four emails transmitting and discussing an undated draft paper, which appears to be an earlier draft of Challenged Document 177A. The first email, dated June 4, 1999 and transmitting the draft paper, is from Mark McClellan to Cynthia Rice, with a copy to Phil Ellis. The second email is dated June 7, 1999, and is from Ms. Rice to Joshua Gotbaum, Daniel Mendelson, Victoria Wachino, and J. Eric Gould, forwarding the first and expressing an opinion about the draft paper and seeking comments on it from the recipients. The third email, dated June 7, 1999, is from Mr. Mendelson to Ms. Rice, Mr. Gotbaum, Ms. Wachino, and Richard Turman, expressing an opinion about the draft paper, and seeking review of the paper by Mr. Turman. The final email is dated June 7, 1999, and is from Mr. Turman to Mr. Mendelson, with copies to an unidentified group, providing his opinion and suggested edits to the draft. Locke Decl. at 24-25. Plaintiff claims the deliberative process privilege.

As this document contains an earlier draft of Challenged Document 177A and a discussion thereof, the Special Master recommends that, consistent with the recommendation for Challenged Document 177A, the Court sustain the privilege claim for Challenged Document 178, notwithstanding Joint Defendants' claimed need.

73. PRA172-5092-5096 [CD 180]

"This document is a July 16, 1998 facsimile from Richard Turman and Jim Esquea to Richard P. Emery, Daniel Mendelson and Victoria Wachino transmitting a July 15, 1998 facsimile from Cynthia Rice to Joshua Gotbaum, Mr. Turman, Tom Perrelli, Gary Claxton, John Karl Scholz, Mark McClellan, and Kevin Burke." Locke Decl. at 25. Mr. Locke explains that the fax "transmits and requests review and comment on Senator Harkin's legislative proposal for a proposed tobacco user fee. It also includes an expression of Ms. Rice's opinion about the reason certain language was deleted from the proposal. The version of the legislative proposal forwarded by Mr. Turman includes his handwritten notes suggesting changes to the proposed legislative language." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 5092, which is a fax cover sheet with no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 5093; although it too is a fax cover sheet, it contains Ms. Rice's opinions and observation (" REDACTED REDACTED"), as well as a request for comments. The Special Master also recommends that the Court sustain the privilege claim for pages 5094-5096, which contain handwritten comments to a draft amendment proposed by Senator Harkin.

The Special Master does not believe that Joint Defendants have shown need for this document, which addresses a legislative proposal regarding youth tobacco user fees. First, Joint Defendants have argued that deliberations relating to federal tobacco revenues are relevant to their affirmative equitable defenses; as these defenses are no longer part of this case, the Special Master does not believe that they are sufficiently relevant to justify overcoming Plaintiff's privilege claim. Second, Joint Defendants have access to any final amendment proposed by Senator Harkin and have not shown a need for an earlier draft.

74. PRA172-5106-5106 [CD 182]

This document is undated, however Mr. Locke believes it is from "probably 1999." Locke Decl. at 25. It is a "draft edited document proposing amended language relating to the definition of `net revenues' to be added to proposed legislation raising tobacco-related revenues." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. "It is . . . clear that the agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States, 617 F.2d at 868. Plaintiff has not done so; the document is undated and Plaintiff does not provide an author. Moreover, while the document contains a suggested change to a draft amendment, Plaintiff does not indicate whether this suggestion was that of an agency employee or a final decision of a policymaker.

75. PRA172-5118-5125 [CD 183]

Plaintiff has released pages 5124-5125, and claims the deliberative process privilege for pages 5118-5123. The withheld pages are "July 10, 1998 and June 28, 1998 versions of a briefing paper written in preparation for briefing the Deputy Director of OMB about prospects for achieving the Administration's tobacco goals following defeat of the McCain bill." Locke Decl. at 25-26. Mr. Locke explains that "[t]he briefing paper reiterates the President's five principles for approving tobacco legislation; characterizes legislation proposed by Senators Hatch and Feinstein; characterizes developments in the House regarding a possible tobacco bill; describes initiatives under consideration internally by the DPC relating to executive actions the Administration could consider taking to achieve its tobacco goals following defeat of the McCain bill; and sets forth the author's opinion about the future prospects for tobacco legislation." Id. at 26.

The Special Master recommends that the Court sustain the privilege claim for the withheld pages (5118-5123). Although the author is unidentified, the document contains policy deliberations intended for a Deputy Director briefing, including the author's opinion on future prospects for tobacco legislation. The document therefore is deliberative and predecisional in nature. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that Joint Defendants have shown that their interest in Plaintiff's internal policy deliberations regarding the chances of success of future tobacco legislative proposals outweighs Plaintiff's interest in its privilege claim.

76. PRA172-5140-5140 [CD 184]

"This document is a July 13, 1998 fax cover sheet from Cynthia A. Rice to Mark McClellan with copies to Joshua Gotbaum, Richard Turman, and Victoria A. Wachino, providing Ms. Rice's opinions concerning and questions about the advertising and promotion portions of a proposed Administration statement regarding a tobacco bill." Reed Decl. at 18; Gonzales Decl. Ex. A at 8. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Although it is a fax cover sheet, it is substantive in nature and contains Ms. Rice's suggestions (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED.").

It is therefore deliberative and predecisional in nature. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that Joint Defendants have shown that their need for this facsimile outweighs Plaintiff's interest in its privilege.

77. PRA172-5149-5155 [CD 185]

"This document is an October 29, 1998 memorandum from Jennifer Forshey, Melany Nakagiri, Frank Seidl, and William G. White, through Barry T. Clendenin, to Joshua Gotbaum and Daniel Mendelson, with a copy to Richard P. Emery, transmitting and seeking comment on the first draft of a memorandum for the Director of OMB regarding tobacco options in the 2000 Budget." Locke Decl. at 26. Mr. Locke explains that this "memorandum was prepared to seek the OMB's director's guidance regarding whether and how the OMB should use tobacco receipts in the 2000 Budget. The draft memorandum sets forth the authors' opinions as to what policy decisions must be made about the use of tobacco receipts in the 2000 Budget and makes a recommendation as to how the EOP should proceed in fleshing out its policy options. The draft memorandum also contains projections of tobacco receipts for the budget based on various proposed per-pack price increases. The first page of the document indicates that the memorandum is a first draft and that a final memorandum eventually would be prepared for the OMB Director." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as this document is a draft of tobacco options for the budget on which comments are sought: "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The document therefore is deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document, as it contains options for using tobacco revenues. Joint Defendants have asserted that such discussions are relevant to their affirmative equitable defenses, which are no longer part of this case and therefore not sufficiently relevant to justify overcoming Plaintiff's privilege interest.

78. PRA172-5156-5156 [CD 186]

"This document is an October 29, 1998 email from Patrick Locke to Joshua Gotbaum, with copies to Richard Turman and Victoria Wachino, reporting on and discussing a meeting of the DPC regarding possible tobacco proposals for the 2000 Budget. The email describes the deliberations that took place during the meeting regarding the manner in which a tobacco revenue increase should be structured. It also contains a further observation by Mr. Locke based on his continued consideration following the meeting and makes a recommendation for further analysis by the Treasury Department." Locke Decl. at 26. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. In the email, Mr. Locke relates to Mr. Gotbaum information he learned at a meeting that Mr. Gotbaum requested he attended, including the opinions of members of the DPC that attended the meeting, and Mr. Locke's thoughts and opinions after the meeting (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."). It is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for deliberations debating whether REDACTED REDACTED REDACTED.

79. PRA172-5157-5159 [CD 187]

"This document is a facsimile from Frank Seidl to Victoria Wachino transmitting and discussing a March 20, 2000 draft letter to Senator Durbin and Congressman Waxman responding to their letter to the President regarding proposals in the 2001 Budget to reduce youth smoking." Locke Decl. at 27. Mr. Locke explains that "[t]he facsimile indicates who within the EOP had already reviewed the draft and seeks guidance from Ms. Wachino about whether further review is necessary." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 5157, which is a fax cover sheet that is not deliberative, and sustain the privilege claim for pages 5158-5159, which is a draft reflecting the views of the White House employees and not the position of the Administration.Coastal States, 617 F.2d at 866. The Special Master does not believe that Joint Defendants have shown need for this document, particularly as they have access to the letter's topic, the budget, as well as any final version of this letter.

80. PRA181-0939-0943 [CD 318]

"This document is an email string transmitting and discussing a draft portion of the State of the Union speech dealing with tobacco." Reed Decl. at 18; Gonzales Decl. Ex. A at 8. The first is dated January 12, 2000, and is from Devorah R. Adler to Joshua Gottheimer, with a copy to James T. Edmonds, "responding to an earlier email from Mr. Gottheimer (not included in this document) about what is being done with respect to tobacco." Id. There is also a January 12, 2000, email from Mr. Gottheimer to Cynthia A. Rice, requesting information about the same topic; and a January 13, 2000, email from Ms. Rice to Mr. Gottheimer, with copies to J. Eric Gould and Eugenia Chough, "transmitting (both in the text of her email and by separate document) the draft entitled `Tobacco Policies — FY 2001 Budget 1/12 Draft,' including providing a brief summary of the proposals in the draft." Id. Plaintiff claims the deliberative process and presidential communications privileges.

As this document is a draft portion of the State of the Union speech, the Special Master recommends that the Court sustain the presidential communications privilege claim as the document reflects "communications authored or solicited and received by those members of an immediate White House adviser's staff who have broad and significant responsibility for investigating and formulating advice to be given the President on the particular matter to which the communications relate." In re Sealed Case, 121 F.3d at 752. The Special Master does not believe that Joint Defendants can show need for this document, as they have not shown that the discussions here are directly relevant to a central issue in this case. Moreover, because Joint Defendants have access to the final version of the speech, they have not established that similar information is not available to them with due diligence from other sources.

81. PRA181-0966-0966 [CD 325]

"This document is a January 12, 2000 email from Cynthia A. Rice to Eric P. Liu and Bruce N. Reed, with copies to Eugenia Chough, Anna Richter, and J. Eric Gould, offering preliminary thoughts and suggested topics for tobacco discussion in the upcoming President's State of the Union address, including seeking guidance as to whether to include a particular topic." Reed Decl. at 19; Gonzales Decl. Ex. A at 8. Plaintiff claims the deliberative process and presidential communications privileges.

Similar to Challenged Document 318, this document solicits comments by highlevel presidential advisors on ideas for the State of the Union to be given by the President. As such, it qualifies for the privilege. The Special Master further recommends that the Court find that Joint Defendants' need does not outweigh the heightened protection afforded documents protected by the presidential communications privilege, as they have not shown that the discussions in this document are directly relevant to a central issue in this case, and as they have access to the final version of the speech.

82. PRA181-1732-1734 [CD 397]

"This document is a March 11, 1998 email from Toby Donenfeld to Kay Casstevens, Monica M. Dixon, Patricia M. Ewing, and Ron Klain, forwarding an email of the same date from Laura Emmett that transmits a proposed statement by President Clinton concerning the Administration's position on the Harkin-Chafee tobacco legislation that is to be introduced and requests comments by the addressees on the proposed statement (and commenting briefly on a related matter on which Ms. Donenfeld is working)." Brown Decl. at 10; Gonzales Decl. Ex. A at 8. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege, as the document reflects information solicited and received by high-level presidential advisors in the course of preparing a statement to be given by the President. The Special Master further believes that Joint Defendants cannot show need for this document. They have not shown that similar information is not available from other sources, particularly as they have access to any final statement made by the President, nor have they shown that communications among presidential advisors regarding a statement on the Harkin-Chafee amendment are directly relevant to a central issue in this case.

83. PRA181-1766-1767 [CD 399]

"This document is a March 2, 1998 email from Toby Donenfeld to Donald H. Gips forwarding a February 27, 1998 email from Ms. Donenfeld to Ron Klain, Patricia M. Ewing, Monica M. Dixon, Kay Casstevens, David R. Thomas, and Wendy C. New, concerning tobacco legislation expected to be offered by Sens. Harkin and Chafee. Ms. Donenfeld discusses concerns that the White House has with the proposed legislation and relates ongoing discussions and offers her opinions about the extent to which the Administration, and particularly the Vice President, should become involved." Brown Decl. at 10; Gonzales Decl. Ex. A at 8-9. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege claim for this document as the communication is from and to employees in the Office of the Vice President only, and as it discusses whether the Vice President will participate in the announcement made by Harkin and Chafee. Plaintiff has not demonstrated that the information was solicited and received for the purpose of formulating advice for the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.").

The Special Master does believe that the document qualifies for the deliberative process privilege, as it is predecisional to an Administration position on involvement with legislative proposals of Senators Harkin and Chafee. Having reviewed Joint Defendants' need arguments, the Special Master further believes that Joint Defendants have not shown need for this information.

84. PRA181-1779-1780 [CD 401]

"This document is two emails discussing whether the Vice President should attend a meeting scheduled by Sen. Daschle to discuss strategy for getting a tobacco bill on the floor in the House and Senate: (a) March 18, 1998, David R. Thomas to Ron Klain, with copies to a large group of OVP personnel, informing them of the proposed meeting and requesting guidance as to whether the Vice President should attend; and (b) March 19, 1998, Toby Donenfeld to Mr. Thomas, relaying the response from Mr. Klain." Brown Decl. at 10; Gonzales Decl. Ex. A at 9. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege. This document addresses whether the Vice President should attend a meeting with members of Congress to discuss a tobacco bill; it does not solicit information to be used in the course of formulating advice to be given to the President. Similarly, there is no basis to sustain the deliberative process privilege, as the issue of whether the Vice President should attend a meeting does not relate to the formulation of Administration policy.

85. PRA181-1781-1786 [CD 402]

This document comprises two emails transmitting and discussing briefly a memorandum for the President from Bruce N. Reed concerning "Tobacco Strategy." The first is dated March 6, 1998, and is from Laura Emmett to a large group of White House and OMB personnel, transmitting the memorandum. The second is dated March 8, 1998, and is from Toby Donenfeld to Kay Casstevens and Lydia R. Ewing, forwarding the first. "The memorandum from Mr. Reed describes meetings within the Executive Branch to develop a communications plan to persuade Congress to pass comprehensive tobacco legislation in 1998" and "`outlines [the Executive Branch's] communications and legislative strategy.'" Reed Decl. at 19; Gonzales Decl. Ex. A at 9. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 1781-1782, as these pages contain emails with no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege for pages 1783-1786, which contain a memorandum for the President from Mr. Reed discussing tobacco strategy. The Special Master does not believe that Joint Defendants have shown a need for a document relating to a proposal for the President's legislative strategy, particularly as this document responds to specific requests made by the President in researching legislative agendas.

86. PRA181-1792-1793 [CD 404]

This document consists of "three brief March 20, 1998 emails concerning the preparation of press guidance on tobacco (not part of this document)." Reed Decl. at 19; Gonzales Decl. Ex. A at 9. They are: "(a) Toby Donenfeld to Cynthia A. Rice, forwarding suggested changes to the press guidance; (b) Ms. Rice to Ms. Donenfeld, commenting on the changes proposed in the attachment to (a); and (c) Ms. Donenfeld responding to Ms. Rice." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claim for page 1793, which contains an email with no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege claim for page 1792, which addresses a statement to be made by the President and makes a recommendation as to its consistency with an earlier statement. The Special Master further believes that Joint Defendants have not shown need as they have not demonstrated that these communications are directly relevant to an issue expected to be central in this case.

87. PRA181-1823-1825 [CD 407]

"This document is two March 12, 1998 emails transmitting and discussing an attached draft Presidential statement on Harkin/Chafee proposed legislation to reduce youth smoking: (a) Laura Emmett to Toby Donenfeld and Donald H. Gips, transmitting the draft statement and requesting comments; and (b) Ms. Donenfeld to Ms. Emmett, responding to (a)." Reed Decl. at 19-20; Gonzales Decl. Ex. A at 9. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 1823-1824, which contain no deliberative information. The Special Master further recommends that the Court sustain the presidential communications privilege for page 1825, as it contains discussions regarding a draft statement to be given by the President regarding the Harkin-Chafee bill and whether the Vice President's office had any comments on it. The Special Master further believes that Joint Defendants have not shown need for this document as they have access to any final statement made by the President, and as they have not shown that these discussions are directly relevant to an issue expected to be central to this case.

88. PRA181-1854-1856 [CD 409]

This document is a duplicate of Challenged Document 430, discussed infra. Brown Decl. at 11; Gonzales Decl. Ex. A at 18. Consistent with the recommendation for Challenged Document 430, the Special Master recommends that the Court overrule the presidential communications privilege, and sustain the deliberative process privilege claim notwithstanding Joint Defendants' asserted need.

89. PRA181-1857-1858 [CD 410]

"This document (which is dated one day before Challenged Document #13 and discusses the announcement described in that document) is a March 22, 1998 email from Toby Donenfeld to Bruce N. Reed, with a copy to Thomas N. Rosshirt, transmitting draft remarks for a speech to be made by the Vice President to the PTA and seeking Mr. Reed's review of and comment on these remarks. The remarks concern smoking in movies, the dangers of tobacco to children, and the Vice President's announcement — in support of the Administration's call for comprehensive tobacco legislation — of a Treasury Department analysis concerning youth smoking and premature deaths (from smoking)." Brown Decl. at 11; Gonzales Decl. Ex. A at 18. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege; the document is a draft speech to be given by the Vice President. Plaintiff has not demonstrated that this information was solicited and received by the Vice President for the purpose of advising the President on policy issues. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). Instead, it appears that this document contains a draft of a public speech, and therefore qualifies for the deliberative process privilege. It is a draft, and Mr. Donenfeld seeks comments from Mr. Reed; it therefore reflects the opinions of Administration employees and not the Administration itself. Coastal States, 617 F.2d at 866. The Special Master does not believe that Joint Defendants have shown need for a draft of a speech to be given publicly, as they have access to any final version. Moreover, Joint Defendants have not established relevancy of this information to the claims and defenses in this matter sufficient to overcome Plaintiff's privilege interest.

90. PRA181-2003-2004 [CD 414]

"This document (which is related to Challenged Documents ##13 and 410) is a March 20, 1998 email from Toby Donenfeld to Jodi R. Sakol forwarding a draft DPC statement, with Ms. Donenfeld's edits, concerning an announcement to be made by the Vice President on March 23 — in support of the Administration's call for comprehensive tobacco legislation — of release of a Treasury Department analysis concerning youth smoking and premature deaths (from smoking)." Brown Decl. at 11; Gonzales Decl. Ex. A at 18. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendation for Challenged Document 410, the Special Master recommends that the Court overrule the presidential communications privilege, as Plaintiff has not demonstrated that this information was solicited and received for the purpose of formulating advice for the President. Rather, the email concerns a statement to be made regarding the Vice President's announcement of youth smoking statistics. The Special Master does believe that the deliberative process privilege applies, as Mr. Donenfeld provides his edits to the draft statement, and seeks a draft from Ms. Sakol. It therefore is deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have not shown need for this draft statement, as they have access to any final version released. Moreover, they have not demonstrated relevancy of this information sufficient to overcome Plaintiff's privilege interest.

91. PRA181-2087-2088 [CD 423]

"This document is two emails: (a) March 2, 1998, Ron Klain to Al Gore, with a copy to Wendy C. New, updating the Vice President on four different issues, including tobacco — developments in the Senate concerning the McCain and Harkin/Chafee proposals; and (b) March 3, 1998, Ms. New to Paul J. Cusack, forwarding (a) and requesting information about one aspect of the tobacco matter discussed in Mr. Klain's email." Brown Decl. at 11; Gonzales Decl. Ex. A at 9. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims. First, the email provides the Vice President with an update regarding the status of events for the day, and does not contain information solicited or received for the purpose of advising the President. Moreover, the deliberative process privilege applies because the document is factual in nature, and "in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed." Paisley, 712 F.2d at 699.

92. PRA181-2091-2092 [CD 424]

"This document is two March 16, 1998 emails: (a) Heather M. Marabeti to Wendy C. New, forwarding and commenting very briefly on an email of the same date from Ron Klain to Al Gore, with a copy to Ms. Marabeti, updating the Vice President on the status of important issues that day, including concerning a meeting between White House staff and Sen. McCain on tobacco; and (b) an email exchange between Ms. New and Ms. Marabeti, requesting information as to which of the two of them has responsibility for one of the non-tobacco matters." Brown Decl. at 12; Gonzales Decl. Ex. A at 9-10. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege claim. Here, the document provides an update for the Vice President regarding the status of events going on that day. It does not solicit and receive information for the purpose of formulating advice to be given to the President. The Special Master also does not believe that the deliberative process privilege applies as the document does not contain policy deliberations, or contain recommendations or opinions for the purpose of creating Administration policy; instead, it simply advises the Vice President of the daily events and is not predecisional to any policymaking.

93. PRA181-2093-2094 [CD 425]

"This document is three March 19, 1998 emails discussing agenda items for the Vice President's schedule: (a) Ansley Jones to a large group of OVP personnel, listing possible items for the Vice President's scheduling meeting, including one suggested by the President; (b) Dan J. Taylor to Toby Donenfeld and Jonathan H. Schnur, following the meeting, relaying a response as to two of the items on the schedule, including the tobacco item (which relates to the matter described in Challenged Document #401); and (c) Ms. Donenfeld to Mr. Taylor, responding to (b)." Brown Decl. at 12; Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims. Here, the document contains an agenda for a meeting, and Plaintiff has not demonstrated how this document contains information solicited or received for the purpose of formulating advice to be given the President, nor has Plaintiff shown how these emails relate to the creation of agency policy.

94. PRA181-2097-2098 [CD 426]

"This document is a March 30, 1998 email from Ron Klain to Al Gore updating the Vice President on six items, including tobacco — analyzing the status of Sen. McCain's proposed tobacco legislation and suggesting an upcoming event as a good venue for the Vice President to comment on the legislation." Brown Decl. at 12; Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process and presidential communications privileges.

Similar to Challenged Document 425, which updates the Vice President on various events, the Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privilege for this document. Plaintiff has not demonstrated how this document contains information solicited or received for the purpose of formulating advice to be given the President, nor has Plaintiff shown how this otherwise factual and informative email relates to the creation of agency policy.

95. PRA181-2108-2109 [CD 429]

"This document is included within Challenged Document #423." Brown Decl. at 13; Gonzales Decl. Ex. A at 10. Consistent with the recommendation for Challenged Document 423, the Special Master recommends that the Court overrule the claims of presidential communications privilege and deliberative process privilege.

96. PRA181-2117-2121 [CD 430]

"This document is two March 13, 1998 emails: (a) Thomas N. Rosshirt to Toby Donenfeld, forwarding a first draft of talking points/suggested remarks for the Vice President at an upcoming March 14, 1998 tobacco forum, which remarks relate to combating youth smoking and the need for comprehensive tobacco legislation; and (b) Ms. Donenfeld to Eli G. Attie and Mr. Rosshirt, transmitting revised draft talking points, including her explanations of her suggested changes." Brown Decl. at 13; Gonzales Decl. Ex. A at 18. Plaintiff claims the deliberative process and presidential communications privilege.

The Special Master recommends that the Court overrule the presidential communications privilege claim. Here, the document contains a draft speech to be given by the Vice President; it does not solicit or receive information in order to formulate advice to be given to the President. In re Sealed Case, 121 F.3d at 752. The Special Master does believe that the draft speech is protected by the deliberative process privilege, as Mr. Rosshirt represents that it is a first draft and seeks comments. Therefore, the speech reflects the views of individuals on the Vice President's staff and not the policy of the Administration. The Special Master further believes that Joint Defendants have not shown need for this document, as they have access to any final speech the Vice President gave, and as they have not demonstrated relevancy of this draft speech sufficient to overcome Plaintiff's privilege interest.

97. PRA181-2133-2139 [CD 432]

Plaintiff has released page 2137 of this document, and claims the deliberative process and presidential communications privileges for pages 2133-2136 and 2138-2139, which contain "a March 20, 1998 email from Toby Donenfeld to Lawrence J. Haas forwarding an email of the same date from Cynthia A. Rice to a large group of White House personnel that transmits several draft papers relating to the Vice President's upcoming speech to the PTA and his announcement — in support of the Administration's call for comprehensive tobacco legislation — of release of a Treasury Department analysis concerning youth smoking and premature deaths (from smoking). Ms. Rice notes that Bruce Reed and Elena Kagan need to review the entire package: (a) draft statement, `Vice President Unveils Statistics Demonstrating Reduced Youth Smoking in Every State under the Administration's Tobacco Plan' (2135-2136); (b) draft `Talking Points for Conference Call [by the Vice President] with State Attorneys General;' and (c) draft `Questions and Answers on State Youth Smoking Reductions.'" Brown Decl. at 13; Gonzales Decl. Ex. A at 19.

The Special Master recommends that the Court overrule the presidential communications privilege for the portion claimed privileged by Plaintiff. Here, while two presidential advisors, Ms. Kagan and Mr. Reed, are charged with reviewing the information, the information is to advise the Vice President, and Plaintiff has not demonstrated that advice was be provided the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.").

The Special Master does believe that the deliberative process privilege applies to the portion claimed privileged as the documents were deliberative and predecisional to the presentation of the Administration's position at the conference. The Special Master further believes that Joint Defendants have not demonstrated need for this information, particularly as the final version of the presentation is available.

C. Documents Relating to the Federal Government's Possible Recoupment of Medicaid-Related Portions of the States' Settlement

Mr. Locke explains that, in the Clinton Administration's review and analysis of the proposed and actual settlements and the proposed legislation, "the issues that were addressed included (1) whether it was appropriate to consider that a portion of the states' anticipated or actual recoveries from the tobacco companies could be considered to be reimbursement for medical expenses that had been funded in the first instance by the Federal Government under the Medicaid program; (2) if so, whether under existing laws and regulations, the United States was entitled to recover (recoup) from the states all or some of that portion; and, (3) if so, what amounts could or should be recovered (recouped) by the United States and whether any alternatives to recoupment should be considered." Locke Decl. at 28-29.

In the FY 2000 Budget, the Administration proposed "to waive its recoupment rights in exchange for commitments by the states to use receipts from the tobacco settlement to fund programs that reduced youth smoking, promoted public health, or advanced other shared priorities." Id. at 29. Mr. Locke explained that the FY 1999 Emergency Supplemental Appropriations Act (P.L. 106-31), signed by the President on May 21, 1999, resolved the issue as it "included a section that prohibited the Federal Government from recouping any portion of the states' payments from the tobacco industry as Medicaid overpayments."Id. Nevertheless, the White House and OMB had undertaken a review of the legislation to preclude recoupment. "The principal purpose of the review and evaluation was to provide advice and guidance to White House and other senior Administration officials as to what position the Executive Branch should take with respect to its recoupment rights (whether it had such a right, whether it should exercise that right, and what alternatives it had to exercising that right)." Id.

Joint Defendants contend that, to the extent that "discussions and communications contained in these documents relate to whether the proceeds from the MSA constitute federal revenues, and whether the Federal government should seek recoupment from the states," these documents are related to the affirmative equitable defenses. Mot. App. B at 14.

They also assert that the President's signing of the Emergency Supplemental Appropriations Act, which waived any recoupment right the government had without requiring the states to enforce their youth access laws, "reflected a significant opportunity for the Federal government to achieve the goal of reducing youth smoking by conditioning waiver of its claim for Medicaid recoupment on state enforcement of youth access laws." Id. at 16.

"Joint Defendants believe that these documents acknowledge the critical importance of a vigorous enforcement program, and the deliberate and calculated waiver of one of the most effective tools for combating youth smoking."Id. They further contend that the deliberations contained in the documents in this section "may, in fact, confirm that the administration agreed with the states that the MSA presented a sufficient deterrent to underage smoking, which is one of Joint Defendants' primary defenses in this case." Id.

1. PRA079-0191-0220 [CD 11]

Mr. Reed explains that "[t]he responsive portion of this document has been released to the defendants. The other portion is a collection of May 13 and 14, 1999 press guidance concerning a number of non-tobacco (hence non-responsive) topics." Reed Decl. at 21; see also Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process privilege for the redacted, non-responsive portion.

The Special Master recommends that the Court overrule the privilege claim for the non-responsive portion of this document, pages 0191-0215; and 0217-0220, which explain the Administration's policy decisions. The Special Master further recommends, however, that the Court not order Plaintiff to produce these pages to Joint Defendants as they are non-responsive in this action, and there is no requirement that non-responsive materials be produced.

2. PRA079-0234-0234 [CD 14]

"This document is an October 1, 1998 email from Jerold R. Mande to David W. Beier, Christopher C. Jennings, Elena Kagan, Joshua Gotbaum, Cynthia A. Rice, and Bruce N. Reed, with copies to Sarah A. Bianchi and Cynthia Dailard, relating a conversation with a member of Sen. Conrad's staff concerning the Administration's position on possible tobacco recoupment legislative language, and seeking guidance as to how to respond to the inquiry." Reed Decl. at 21; Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the document provides the opinion of an EOP employee regarding recoupment and the belief that " REDACTED REDACTED REDACTED REDACTED." The Special Master does not believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest, as Mr. Mande basically sets forth Senator Conrad's concerns and asks how the Administration should respond; therefore it is not relevant to Joint Defendants' need arguments.

3. PRA079-0397-0397 [CD 30]

"This document is a May 5, 1999 email from Christopher C. Jennings to Sarah A. Bianchi forwarding an email of the same date from Cynthia A. Rice to a group of White House personnel relating and discussing a proposal by Daniel Mendelson for dealing with the Sen. Hutchison amendment on recoupment." Reed Decl. at 21; Gonzales Decl. Ex. A at 10-11. Plaintiff claims the deliberative process privilege as well as the attorney-client privilege as "Ms. Rice notes that Mr. Mendelson will seek a legal opinion from the OMB General Counsel concerning one aspect of his proposal. She also provides her opinions concerning the issue." Id.

The Special Master believes that this document qualifies for the deliberative process privilege. It relays Mr. Mendelson's policy suggestion, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED," as well as Ms. Rice's opinion that she "REDACTED REDACTED ." The Special

Master does not believe that the attorney-client privilege applies; the communications indicate that Mr. Mendelson intends to speak to the General Counsel, however the email does not reveal the substance of any communications actually made to counsel for the purpose of seeking legal advice.

The Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege claim, as they have demonstrated that deliberations regarding whether the government should condition waiver of recoupment on a requirement that states allocate a portion of the settlement funds to youth smoking are relevant. See Mot. App. B at 16. Additionally, such discussions are not available to Joint Defendants from other sources; therefore, while recognizing Plaintiff's concerns regarding the potential for future chill resulting from disclosure of agency deliberations, the Special Master recommends that the Court order Plaintiff to release this document to Joint Defendants.

4. PRA079-0445-0445 [CD 35]

"This document consists of three brief January 22, 1999 emails: (a) Fred DuVal to Mickey Ibarra, providing background information on certain developments with respect to tobacco legislation (recoupment) and tobacco farmers; (b) Mr. Ibarra to Morley Winograd forwarding (a) and requesting information on another matter; and (c) Mr. Winograd to Lisa M. Mallory forwarding (a) and (b)." Reed Decl. at 22; Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim as Plaintiff has not established how these communications relate to the agency's deliberative process. See Coastal States, 617 F.2d at 868. Rather, the emails appear to be an "FYI" and do not suggest policy or make recommendations. Paisley, 712 F.2d at 699 ("in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed."

5. PRA172-4088-4094 [CD 38]

"This document is a March 1, 1999 fax from Joshua Gotbaum to Richard Turman forwarding a fax of the same date from Mr. Turman, Frank Seidl, and Jennifer Forshey to Daniel Mendelson, with a copy to Ingrid M. Schroeder, attaching the OMB Health Division's comments on a February 28, 1999 paper drafted by Cynthia Rice with a proposal concerning the Medicaid recoupment issue." Locke Decl. at 29. Mr. Locke explains that the draft "contains a large number of OMB handwritten edits and comments by various staff. The Health Division fax notes that there will be further OMB comments from William G. White and Mark Miller." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 4088-4089, which are fax cover sheets and do not contain deliberative information. The Special Master believes that pages 4090-4094 qualify for the privilege claim, as they contain Ms. Rice's draft on the recoupment issue, which includes questions and comments on the recoupment policy, as well as significant handwritten comments from OMB. The Special Master does not believe that Joint Defendants have shown need for this document; while relevant and unavailable from other sources, the Special Master believes that the preliminary nature of the draft, reflected by Ms. Rice's questions, the OMB edits, and the fact that more comments will follow, could result in a chilling effect on future agency deliberations.

6. PRA172-4095-4100 [CD 39]

"This document is a February 9, 1999 memorandum from Ingrid M. Schroeder and Joshua Gotbaum to Cynthia Rice, Daniel Mendelson, and Richard Turman forwarding revised draft briefing materials for HHS Secretary Shalala on the tobacco recoupment issue, including a version showing redline/strikeout edits." Locke Decl. at 30. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4095, which does not contain any deliberative information. Pages 4096-4100 do qualify for the privilege as they contain substantial edits for the tobacco QA for Secretary Shalala. Joint Defendants' need does not outweigh Plaintiff's privilege interest. Here, the draft is very preliminary in nature and the Special Master believes that its disclosure could result in a future chilling effect on agency deliberations.

7. PRA172-4101-4102 [CD 40]

This document is undated, but Mr. Locke estimates that it was created "probably around March 1, 1999." Locke Decl. at 30. It is a "fax cover sheet from Joshua Gotbaum to Cynthia Rice forwarding a marked-up draft paper concerning a proposal for legislation relating to Medicaid recoupment. The draft shows edits made by OMB." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege claim as it contains substantial edits to the draft, and therefore reflects the opinions of Administration employees and not the policy of the Administration. Coastal States, 617 F.2d at 866. The Special Master further believes that Joint Defendants cannot show need for this document; although the topic is relevant, the discussions are so preliminary in nature that future internal deliberations within the EOP could be chilled from release of this document.

8. PRA172-4103-4106 [CD 41]

"This document is a February 26, 1999 fax from Richard Turman and Frank Seidl to Ingrid M. Schroeder transmitting their edits to draft specifications of state spending requirements related to a tobacco recoupment proposal." Locke Decl. at 30. It is a partial duplicate of Challenged Documents 38 and 39. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4104, which is a fax cover sheet with no deliberative information. Consistent with the recommendation for Challenged Documents 38 and 39, the Special Master recommends that the Court sustain the privilege claim for pages 4103 and 4105-4106, notwithstanding Joint Defendants' claimed need.

9. PRA172-4107-4113 [CD 42]

"This document is a March 2, 1999 memorandum from Joshua Gotbaum and Daniel Mendelson to Jacob Lew and Sylvia Mathews concerning (a) whether to provide assistance to the Senate on a `menu' of programs to be included in tobacco legislation dealing with recoupment, and (b) Mr. Lew's upcoming testimony before the Senate Finance Committee on recoupment." Locke Decl. at 30. The memorandum attaches "a one-page draft paper describing a recoupment legislative proposal; two pages of talking points for the upcoming testimony on Medicaid tobacco recoupment; `likely Senate Finance Committee questions;' and `points to be made in HCFA testimony on Medicaid tobacco recoupment.'" Id. at 31. Plaintiff claims the deliberative process privilege.

The Special Master believes that the documents qualify for the deliberative process privilege. Here, the documents contain discussions regarding congressional testimony to be given on the tobacco issue, and Messrs. Gotbaum and Mendelson request guidance on recoupment policy issues, and attach draft documents for review by Mr. Lew and Ms. Mathews. The discussions therefore are deliberative and predecisional.

Joint Defendants have established that communications relating to the Administration's development of the recoupment policy are relevant, specifically as the Administration initially sought to condition the recoupment waiver on the state's agreement to allocate a portion of the MSA proceeds to youth smoking cessation and deterrence programs. See Mot. App. B at 16. The Special Master does not believe that the discussions contained in these documents are so candid or personal that future agency deliberations will be chilled should these documents be released. Accordingly, the Special Master recommends that the Court order Plaintiff to produce Challenged Document 42 to Joint Defendants.

10. PRA172-4114-4114 [CD 43]

"This document is an April 26, 1999 memorandum from Joshua Gotbaum to Jacob Lew and Sylvia Mathews, with a copy to Daniel Mendelson, reporting on a conversation with Bruce Reed concerning conversations Mr. Reed has had with others about recoupment and providing his characterization of the Administration's position on recoupment and soliciting guidance from Mr. Lew and Ms. Mathews on this issue." Locke Decl. at 31; Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege claim as Plaintiff has not shown that this document reflects information solicited and received for the purpose of formulating advice to be given to the President.See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). Rather, it relates a conversation that Mr. Reed had with a senator, and REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED . The Special Master does believe that the deliberative process privilege applies, as the document contains Mr. Gotbaum's personal opinion, and because he solicits additional input: " REDACTED REDACTED REDACTED REDACTED"

Although this document is candid and personal in nature, the Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. Here, the document addresses REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED. Joint Defendants have established that such information is relevant, see Mot. App. B at 16, and communications such as this are not available from other sources. On balance, therefore, the Special Master believes that Joint Defendants' need outweighs Plaintiff's concerns of the future chilling effect that disclosure of communications such as this could have on future Administration deliberations.

11. PRA172-4115-4116 [CD 44]

Plaintiff has released page 4115 of this document, and continues to claim the deliberative process privilege for page 4116, which "is the second page of a May 4, 1999 email from Frank Seidl, Anne E. Tumlinson, and Jeffrey A. Farkas to a large group of OMB officials and employees presenting their views on Rep. Obey's draft Medicaid tobacco recoupment language, including the authors' comments and concerns about this proposed amendment." Locke Decl. at 31.

The Special Master believes that page 4116 qualifies for the privilege claim, as it contains the opinions and concerns of OMB employees to Representative Obey's Medicaid recoupment proposal. It is therefore deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have not shown need for this document. First, Joint Defendants have access to Representative Obey's legislative proposals, and have not shown a need for the comments of OMB employees on the legislation. Second, because the withheld page contains the subjective comments and concerns of three specific OMB employees, the Special Master believes its disclosure could result in a chilling effect on future agency deliberations.

12. PRA172-4139-4140 [CD 46]

"This document is a March 17, 1999 email from Cynthia A. Rice to a large group of White House and OMB officials and employees transmitting edits from Bruce N. Reed to be made to the Statement of Administration Position on legislation on tobacco recoupment and another, non-responsive matter, including an explanation of the changes and the Administration's position." Reed Decl. at 22; Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 4140, which contains only a copy list for the email and no substantive information. The Special Master further believes that page 4139 does qualify for the presidential communications privilege, as it contains proposed edits to a Statement of Administration Position which reflects the President's policy on recoupment and another non-responsive issue. It therefore contains information solicited and received by immediate White House advisers for the purpose of formulating advice for the President. The Special Master does not believe that Joint Defendants have shown the requisite need to overcome the heightened protection afforded communications protected by the presidential communications privilege, as they have not shown that they cannot with due diligence discover similar information from other sources, particularly as they have access to the final version.

13. PRA172-4171-4176 [CD 49]

"This document essentially is a duplicate of Challenged Document #38. The only differences are that the cover page from Joshua Gotbaum is not included, and the draft paper has some additional handwritten deletions from the version in #38." Locke Decl. at 49. Plaintiff claims the deliberative process privilege.

Consistent with the recommendation for Challenged Document 38, the Special Master recommends that the Court overrule the privilege claim for page 4171, which is a fax cover sheet with no deliberative information, and sustain the privilege claim for pages 4172-4176, notwithstanding Joint Defendants' claimed need.

14. PRA172-4177-4177 [CD 50]

"This document is a February 28, 1999 email from Cynthia A. Rice to Joshua Gotbaum and Ingrid M. Schroeder, with a copy to J. Eric Gould, forwarding a tobacco recoupment proposal (not included as part of this document) and noting four areas as to which Ms. Rice particularly wants feedback." Reed Decl. at 22; Gonzales Decl. Ex. A at 11. Mr. Reed notes that "[t]he attachment to this email is the document in Challenged Documents #38 and #49." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Ms. Rice attaches the draft that the Special Master believes is privileged, and seeks feedback on four issues, indicating her specific areas of concern. The Special Master does not believe that Joint Defendants have shown need for these communications. Although the issue is relevant, the Special Master believes that the preliminary nature of these discussions could result in a chill of future Administration discussions.

15. PRA172-4178-4178 [CD 51]

"This document is a March 1, 1999 email from Cynthia A. Rice to Joshua Gotbaum and Ingrid M. Schroeder forwarding an email of the same date from Jeanne Lambrew to Ms. Rice, with copies to Christopher C. Jennings and Devorah R. Adler, providing suggested edits and additions to Ms. Rice's draft tobacco recoupment proposal." Reed Decl. at 22; Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document contains Ms. Lambrew's suggestions for the proposal, as well as her questions and concerns. It is therefore deliberative and predecisional in nature. As with other documents addressing the recoupment proposal, the Special Master believes that the discussions are very preliminary in nature and that Joint Defendants' need does not outweigh Plaintiff's interest as disclosure of this email could serve to chill future Administration deliberations.

16. PRA172-4179-4183 [CD 52]

"This document is a February 28, 1999 draft edited tobacco recoupment proposal that is the original version drafted by Ms. Rice, edited copies of which are found in Challenged Documents #38 and #49." Reed Decl. at 23; Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege. Consistent with the recommendation for Challenged Documents 38 and 49, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 52, notwithstanding Joint Defendants' claimed need.

17. PRA172-4187-4193 [CD 54]

"This document is a March 4, 1999 faxed memorandum from William G. White and Frank Seidl to Joshua Gotbaum and Daniel Mendelson reporting on and analyzing a White House meeting attended by White House, OMB, Department of Justice, and HHS to discuss tobacco Medicaid recoupment strategy. The memorandum relates advice given by the Department of Justice concerning the states' positions on recoupment. Attached to the memorandum are: a `preliminary draft' statement of arguments/counter-arguments intended to assist the Administration in developing its recoupment strategy; and a brief paper seeking a legal opinion concerning recoupment legislation." Locke Decl. at 32. Plaintiff claims the deliberative process and attorney-client privilege.

The Special Master recommends that the Court overrule the attorney-client privilege claim, as the document does not contain or reveal confidential client communications made to an attorney for the purpose of receiving legal advice. Instead, the memorandum indicates that REDACTED REDACTED REDACTED . Such communications from counsel to client are not protected by the attorney-client privilege as they do not reveal confidential client communications.

The Special Master does believe that the deliberative process privilege applies as the document relates a meeting among EOP employees to discuss policy options regarding recoupment. Further, the Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. Here, the document contains discussions seeking to support the Administration's position on REDACTED REDACT, which directly relate to Joint Defendants' arguments regarding REDACTED REDACTED REDACTED REDACTED REDACTED . See Mot. App. B at 16. Notwithstanding Plaintiff's concerns regarding the potential for future chill of agency deliberations, the Special Master believes that Joint Defendants' need outweighs Plaintiff's privilege interest.

18. PRA172-4220-4224 [CD 55]

This document is undated, but Mr. Locke believes that it is "probably [from] February 1999." Locke Decl. at 32. It consists of "budget briefing materials prepared by the OMB Health Division concerning tobacco recoupment, and two pages of draft HHS briefing materials for HHS Secretary Shalala on tobacco recoupment included in Challenged Document #39." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for pages 4223-4224, which are a duplicate of Challenged Document 39. Consistent with the recommendation for Challenged Document 39, the Special Master does not believe that Joint Defendants' need outweighs Plaintiff's privilege interest. The Special Master further recommends that the Court overrule the claim for pages 4220-4222. These pages contain questions and answers on the recoupment policy; Mr. Locke does not state that these pages are drafts, Plaintiff has not otherwise shown that the pages are drafts, and the pages themselves do not indicate that they are predecisional.

19. PRA172-4241-4242 [CD 56]

Plaintiff has released the majority of this document, but continues to claim the deliberative process privilege for the last two lines of the second page, which "is a very brief request for guidance on HHS's proposed tobacco control definition (concerning tobacco recoupment issues)." Reed Decl. at 23; Gonzales Decl. Ex. A at 11.

The Special Master recommends that the Court overrule the privilege claim for the proposed redaction, which states: " REDACTED REDACTED REDACTED ." This request reveals no more information than already disclosed in Mr. Reed's declaration. Accordingly, there is no reason to maintain the privilege over the redaction.

20. PRA172-4244-4245 [CD 57]

Plaintiff has released a portion of this document and continues to claim the deliberative process privilege for "a February 26, 1999 email from Ingrid M. Schroeder to Cynthia A. Rice, with a copy to Joshua Gotbaum, [which] is a very brief request for guidance on HHS's proposed tobacco control definition (concerning tobacco recoupment issues) and a handwritten comment/opinion by Victoria Wachino about the Budget language mentioned in paragraph 2 of the released portion." Reed Decl. at 23; Gonzales Decl. Ex. A at 12.

Review of the document reveals that there is no February 26, 1999 email from Ms. Schroeder contained in the document, and that the only emails are from Ms. Rice and Ms. Mays, and Ms. Schroeder is a recipient of Ms. Rice's email. The handwritten comment by Ms. Wachino that Plaintiff seeks to protect states, " REDACTED REDACT" which is apparently a comment regarding Ms. Rice's request for the budget language prepared for the public health safety net. The Special Master believes that this language is factual and not deliberative in nature; therefore, Plaintiff's privilege claim for its proposed redaction should be overruled.

21. PRA172-4258-4261 [CD 58]

This document is a February 21, 1999 email from Joshua Gotbaum to Jacob Lew and Sylvia Mathews, with copies to a large group of OMB personnel, transmitting and discussing two tables of possible programs to be funded by states in exchange for the Federal government waiving its recoupment rights. The email also discusses strategy for recoupment and development in Congress." Locke Decl. at 32. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4261, which contains only the email copy list and no substantive information. The Special Master further believes that pages 4258-4260 qualify for the privilege, as they discuss alternatives for federal recoupment: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does believe that Joint Defendants need for this information outweighs Plaintiff's privilege interest. Here, the document addresses recoupment alternatives, and whether to require states to allocate funds for specific tobacco programs; Joint Defendants have established the relevancy of this information to the claims and defenses in this case. See Mot. App. B at 16. Moreover, this is the type of information that is not available to Joint Defendants from other sources. Therefore, notwithstanding Plaintiff's concern that disclosure of such information would have a chilling effect on future government deliberations, the Special Master recommends that the Court order Plaintiff to produce this entire document to Joint Defendants.

22. PRA172-4273-4277 [CD 59]

This document is undated, however Mr. Locke believes it was created on "probably February 16, 1999." Locke Decl. at 32. It is a "fax cover sheet from Joshua Gotbaum to Cynthia Rice transmitting Mr. Gotbaum's edits to draft questions and answers to be used by HHS Secretary Shalala to discuss tobacco recoupment. The attachment includes two versions of the draft questions and answers, both with Mr. Gotbaum's edits. These are later versions of the briefing materials in Challenged Document #39." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4273, which is a fax cover sheet with no substantive information. Consistent with the recommendation for Challenged Document 39, the Special Master recommends that the Court sustain the privilege claim for pages 4274-4277, notwithstanding Joint Defendants' asserted need. Although this document is a later version of Challenged Document 39, it still contains the subjective editorial comments of EOP personnel, and the Special Master believes that a chilling effect could result from its disclosure.

23. PRA172-4280-4281 [CD 60]

"This document is a February 9, 1999 draft of the questions and answers for HHS Secretary Shalala concerning tobacco recoupment included in Challenged Document #39." Locke Decl. at 33. Plaintiff claims the deliberative process privilege. Consistent with the recommendation for Challenged Document 39, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 60, notwithstanding Joint Defendants' claimed need.

24. PRA172-4335-4335 [CD 62]

This document is a duplicate of Challenged Document #43. Locke Decl. at 33. Consistent with the recommendation for Challenged Document 43, the Special Master recommends that the Court overrule the claim of presidential communications and sustain the claim of deliberative process privilege for Challenged Document 62. Also consistent with the prior recommendation, the Special Master recommends that the Court find that Joint Defendants' need for this document outweighs Plaintiff's privilege interest.

25. PRA172-4348-4349 [CD 63]

Plaintiff has released the two "Background" paragraphs on the first page and continues to claim the deliberative process privilege for "an undated (but probably mid-1998, pre-MSA) paper prepared within the Executive Branch entitled `Discussion Draft [—] Tobacco: Medicaid Recoupment Policy,' [which] contains a proposal for the FY 2000 Budget for possible legislation relating to the Federal Government's recoupment rights." Reed Decl. at 23; Gonzales Decl. Ex. A at 12.

The Special Master believes that the document qualifies for the privilege, as it contains a suggested recoupment proposal for the FY 2000 Budget, and a commentary of the budget implications of the proposal. It therefore is deliberative and predecisional in nature.

The Special Master further believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest; here, the document addresses the merits of a budget proposal that would " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Joint Defendants contend that the government did not follow through on conditioning waiver of recoupment on states' allocation of settlement funds, and this document is directly relevant to their arguments. See Mot. App. B at 16. Moreover, it is the type of information not available to Joint Defendants from other sources. The Special Master does not believe that the document, which does not identify an author, is particularly candid or personal in nature; therefore the danger of future chill is minimal and the document should be produced to Joint Defendants in its entirety.

26. PRA172-4357-4360 [CD 64]

"This document is a February 4, 1999 fax from William G. White to Joshua Gotbaum and Daniel Mendelson transmitting draft HHS revisions to a draft tobacco recoupment question and answer on tobacco recoupment policy in the 2000 Budget provided by OMB to HHS. Mr. White requests Mr. Gotbaum's and Mr. Mendelson's review of the changes requested by HHS." Locke Decl. at 33. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4357, which is a fax cover sheet without policy deliberations. The Special Master does believe that pages 4358-4360 qualify for the privilege. Although page 4358 is also a fax cover sheet, it contains substantive information relating to pages 4359-4360, which contain edits to questions and answers, and seek comments on certain edited portions. These pages therefore reflect the give and take of the agency deliberative process.

The Special Master does believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. The draft document represents the Administration's thinking on the recoupment issue, and the question of federal entitlement to funds that the government later relinquished without conditioning the waiver on a requirement that the states allocate the funds to certain programs. This is directly relevant to claims and defenses in this matter, see Mot. App. B at 16, and it is unclear whether the final questions and answers would be publicly available. Finally, because authorship of the document is not attributed to any particular employee, the Special Master believes the danger of future chill is not significant.

27. PRA172-4400-4401 [CD 69]

"This document is a January 29, 1999 email from William G. White to Victoria Wachino forwarding a January 27, 1999 email from Mr. White (jointly written with Cynthia Smith) to Daniel Mendelson and Gina Mooers, with copies to an unidentified group, that provides the authors' preliminary understanding of what the upcoming Congressional Budget Office (CBO) assumptions will be on recoupment and provider taxes in CBO's January 1999 budget baseline." Locke Decl. at 33. Mr. Locke explains that the email contains the authors' "observations and analysis of the CBO's expected calculations and the methodology relating to those calculations" and that "[t]he final sentence of this document states that the document is based on the authors' analysis and speculation, and not solely on facts provided by the CBO." Locke Decl. at 33. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege, as it contains a discussion regarding the CBO report on tobacco recoupment, and observations and analysis by the Health Division at OMB using certain assumptions. It therefore is deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have shown need for this document. Unlike documents that address whether the government should seek recoupment or waive recoupment on the condition that the states use their settlement funds for certain programs, this document analyzes a publicly available CBO report, which is available to Joint Defendants as well. Moreover, as it contains the assumptions of a couple of OMB employees, the Special Master believes that there is a greater danger of future chill to agency deliberations by release of this document as compared to others analyzed in this section.

28. PRA172-4407-4407 [CD 71]

This document is undated, but Mr. Locke believes it is from "probably late 1998 or early 1999." Locke Decl. at 34. It consists of "handwritten notes by Victoria Wachino with preliminary observations about possible Federal recoupment legislation," which "are a preliminary exploration of possible terms for such legislation." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for Ms. Wachino's preliminary thoughts and observations regarding possible recoupment legislation. The Special Master does not believe that Joint Defendants have shown need for these notes, which are preliminary and personal to one individual EOP employee.

29. PRA172-4450-4451 [CD 78]

"This document is a January 11, 1999 email from William G. White to Daniel Mendelson and Joshua Gotbaum, with copies to a large group of OMB personnel, that seeks Mr. Mendelson's and Mr. Gotbaum's confirmation on how the tobacco recoupment policy in the 2000 Budget should be described internally within the EOP and to HHS when the Budget is released." Locke Decl. at 34. Mr. Locke explains that the "email provides the proposed internal description and requests guidance as to whether the description is accurate," and "includes Victoria Wachino's handwritten notations and comments." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. The email expressly seeks comment on the contents, and contains questions and Health Division observations regarding the recoupment proposal. Although it seeks to explain administration policy, the document itself is a draft and seeks guidance on whether the explanation itself is accurate and appropriate. Therefore, it is deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants' need for drafts of documents that seek to explain policy outweighs Plaintiff's privilege interest in allowing its employees to effectively debate the correct interpretation of its own policy. While discussions relating to recoupment are relevant, the Special Master notes that Joint Defendants do have access to the budget proposal to which this email relates, and are able to discover information on the administration's actual interpretation of its proposal from other sources.

30. PRA172-4551-4551 [CD 109]

"This document is a November 19, 1998 email from Patrick Locke to Victoria Wachino, with copies to a large group of OMB personnel, suggesting a basis for revising estimates on possible Federal tobacco recoupment recoveries (based upon a breakdown of payments made by the tobacco companies under the MSA)." Locke Decl. at 34. Mr. Locke asserts that "[a] handwritten note to this email suggests that guidance is needed from Joshua Gotbaum on this matter." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege, as it notes that the administration is " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants have shown need for this document, as it relates to the amount the government is entitled to recoup, rather than to the issue addressed by Joint Defendants in their need argument, i.e., whether the government should recoup certain funds or forego recoupment on the condition that states use the settlement funds in certain ways. The Special Master therefore does not believe that this discussion is sufficiently relevant to Joint Defendants' claimed need to justify overcoming Plaintiff's privilege interest.

31. PRA172-4558-4558 [CD 113]

"This document is a November 18, 1998 email from Patrick Locke to Dawn Woollen, with copies to a large group of OMB personnel, offering Mr. Locke's comments about possible problems raised by assumptions made in a tobacco recoupment memorandum." Locke Decl. at 35. Plaintiff claims the deliberative process privilege.

The Special Master believes that the email qualifies for the deliberative process privilege as it contains Mr. Locke's comments on and suggestions to the recoupment memorandum, such as " REDACTED REDACTED REDACTED REDACTED." It is therefore deliberative and predecisional in nature. The Special Master further believes that Joint Defendants' need for this information does not outweigh Plaintiff's privilege claim. Joint Defendants have claimed a need for discussions pertaining to the decision to waive recoupment, or whether the MSA was adequate to combat youth smoking; these topics are not contained in this email. Therefore, the email is not sufficiently relevant to Joint Defendants' claimed need to justify overcoming Plaintiff's privilege claim.

32. PRA172-4564-4568 [CD 114]

Plaintiff has released pages 4564-4565 and continues to claim the deliberative process privilege for pages 4566-4568, which are "two draft items prepared in late November, 1998: (a) a `discussion draft' entitled `Tobacco: Medicaid Recoupment Policy,' offering a 2000 Budget proposal for legislation for recoupment/state spending on tobacco, including a table entitled `Federal Grant Programs to States that Could Be Assumed by States,' listing such programs; and (b) a `draft' table entitled `Federal Grant Programs to States that Could be Assumed by States' (different version of the table in the paper, listing additional possible programs)." Locke Decl. at 35.

Page 4566 is a duplicate of page 4348 of Challenged Document 63, to which Plaintiff claimed the deliberative process privilege to the background portion. Consistent with the recommendation for page 4348 of Challenged Document 63, the Special Master recommends that the Court sustain Plaintiff's privilege claim for page 4566, but find that Joint Defendants' need outweighs Plaintiff's privilege interest.

With respect to the charts contained at pages 4567-4568, the Special Master recommends that the Court sustain the privilege claim as the information in the charts is recommendatory in nature. The Special Master believes that Joint Defendants' need for pages 4567-4568 outweighs Plaintiff's privilege claim. These pages relate to proposals to require states to use the settlement money to assume certain federal programs, which is relevant to Joint Defendants' arguments regarding the waiver of recoupment without imposing the type of conditions addressed by the discussion in this chart. See Mot. App. B at 16. This type of information is not available to Joint Defendants from other sources. Moreover, no author is identified; therefore the Special Master believes that the danger of future chill is minimal.

33. PRA172-4669-4669 [CD 122]

"This document is an October 14, 1998 memorandum from William G. White to Elizabeth Gore, with copies to a large group of OMB personnel, summarizing/analyzing a recoupment proposal by Rep. Armey and recommending an Administration response to this proposal." Locke Decl. at 35. Mr. Locke explains that the "document includes Victoria Wachino's handwritten comments with respect to certain of the issues discussed." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. Here, Mr. White recommends that REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED . It therefore recommends a policy position the Administration should take.

The Special Master further believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. This document addresses REDACTED REDACTED REDACTED , which is relevant to Joint Defendants' arguments regarding the change in policy.See Mot. App. B at 16. While the document contains the candid opinion of OMB employees, it is the type of information not available to Joint Defendants from other sources. Therefore, notwithstanding Joint Defendants' need for this information, the Special Master recommends that the Court order Plaintiff to produce it to Joint Defendants.

34. PRA172-4987-4988 [CD 172]

"This document is a May 19, 1999 draft of an email from Victoria Wachino to Cynthia Rice and J. Eric Gould, with copies to Joshua Gotbaum, Daniel Mendelson, Mark Miller, Jeffrey A. Farkas, and Richard Turman, providing a revised draft statement (including Ms. Wachino's handwritten notes) by President Clinton concerning congressional action on recoupment and youth smoking. Also included in the document (but not part of the draft email) is another version of the draft Presidential statement and a list of `possible post-Hutchison responses' that are being considered by the Administration." Locke Decl. at 35; Gonzales Decl. Ex. A at 12. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim. This document is a draft statement, with staff editorial comments, to be given by the President regarding Congressional action on the recoupment issue; it therefore reflects information solicited and received for the purpose of advising the President. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available to them with due diligence from other sources — namely, the President's actual statement on the Congressional action.

35. PRA172-5001-5007 [CD 173]

This document comprises "a draft enrolled bill memorandum from Jacob Lew to the President concerning H.R. 4111, Emergency Supplemental Appropriations Act, FY 1999, including a recommendation as to whether to sign or veto the bill, that mostly discusses non-responsive matters, but includes a discussion of the Sen. Hutchison recoupment amendment;" as well as "a draft statement by the President to accompany his signing or veto of the legislation discussed in the enrolled bill memorandum, including discussing the Sen. Hutchison amendment and ongoing Administration efforts to combat youth smoking." Locke Decl. at 36; Gonzales Decl. Ex. A at 12. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this draft memorandum for the President, and the President's draft signing statement. The Special Master does not believe that Joint Defendants have shown need for this information. First, they have not demonstrated that the information contained herein is directly relevant to issues expected to be central to this litigation, particularly as the documents address a number of issues aside from recoupment. Moreover, they have not shown that similar information is not available to them with due diligence, particularly in light of the fact that they have access to the final signing statement of the President, as well as the legislation itself, and have no need for Mr. Lew's summary of the legislation.

36. PRA172-5008-5010 [CD 174]

This document consists of two May 19, 1999 emails. The first is "from Victoria Wachino to Joshua Gotbaum, with copies to Cynthia Rice and Jeffrey Farkas, transmitting the current draft of a statement by President Clinton concerning congressional action on recoupment." Locke Decl. at 36; Gonzales Decl. Ex. A at 12. The second is "from Ms. Rice and Ms. Wachino, with copies to Mr. Gotbaum, Daniel Mendelson, Mr. Farkas, and J. Eric Gould, with a suggested revision and information about plans for further review." Id. The last page of this email is a partial duplicate of Challenged Document #175. Plaintiff claims the deliberative process privilege and the presidential communications privilege.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for this draft language, as it was intended for the presidential signing statement and therefore reflects information solicited and received by immediate presidential advisers for the purpose of formulating advice for the President. Joint Defendants have not established need for this document as they have not shown that similar information is not available to them from other sources, particularly as they do have access to the final signing statement.

37. PRA172-5011-5025 [CD 175]

"This document consists of: (a) two different earlier versions of the enrolled bill memorandum and statement by the President described in Challenged Document #173, with handwritten notes and edits; and (b) a May 19, 1999 email from Jeffrey A. Farkas to Silvana Solano, with copies to a large group of OMB recipients (the second page of the email is included as the last page of Challenged Document #174), forwarding the two emails included in Challenged Document #174." Locke Decl. at 36; Gonzales Decl. Ex. A at 12. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendations for Challenged Documents 173 and 174, the Special Master recommends that the Court sustain the presidential communications privilege claim for Challenged Document 175, notwithstanding Joint Defendants' claim of need.

38. PRA172-5026-5029 [CD 176]

This document consists of "a May 18, 1999 email from Victoria Wachino to an unidentified group, with copies to Barry T. Clendenin, Gina Mooers, and Joshua Gotbaum, that forwards an earlier version of the draft statement by the President and the list of `Possible Post-Hutchison Amendment Responses in Challenged Document #172 (5026); (b) the first two pages of a draft `Statement by the President' (5027 and 5028, in reverse order); and (c) the final page of a draft enrolled bill memorandum from Jacob Lew to the President." Locke Decl. at 37; Gonzales Decl. Ex. A at 12-13. It is a partial duplicate of Challenged Document #173. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendations for Challenged Documents 172 and 173, the Special Master recommends that the Court sustain the presidential communications privilege claim for Challenged Document 176, notwithstanding Joint Defendants' asserted need.

39. PRA172-5030-5030 [CD 177]

"This document consists of a May 18, 1999 email from Patrick Locke to Victoria Wachino providing comments and edits on an earlier version of the draft signing or veto statement in Challenged Document #176 (not included in this document). The email contains Mr. Locke's understanding of the origin of a particular figure used in the statement and suggests use of an alternative figure." Locke Decl. at 37. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it addresses changes proposed to be made to the President's signing statement. It is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document as they have access to the final signing statement and have not shown independent need for earlier comments to the draft.

40. PRA181-1008-1009 [CD 333]

This document consists of "four emails (three March 19, 1999, the other December 10, 1999) forwarding tobacco questions and answers for the President to use in responding to questions about the proposed amendment to the supplemental appropriations bill that would have dictated how the states must spend a portion of their MSA funds." Reed Decl. at 24; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 1008, which contain only forwarding emails with no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege for page 1009, which contains draft questions and answers for the President relating to recoupment; therefore it contains information solicited and received for the purpose of advising the President. The Special Master does not believe that Joint Defendants have shown that they are unable with due diligence to gather similar information from other sources, such as public statements actually made by the President on this issue.

D. Documents Relating to Efforts to Control Youth Smoking

Mr. Locke explains that "[a]ll, or virtually all, of the work that the Clinton Administration did with respect to cigarettes and smoking related directly or indirectly to its efforts to combat underage smoking. While much of the work done related to specific proposed comprehensive tobacco settlements or legislation (discussed above) or regulations (discussed further below), at the same time the Executive Branch, and particularly OMB, Treasury, and HHS, worked generally to analyze the extent of underage smoking and different ways to combat or reduce such underage smoking." Locke Decl. at 37. The analyses included efforts "to predict the likely effects of legislative or regulatory proposals, including taxes or penalties, on the incidence of underage smoking," as well as "consideration and discussion within the Executive Branch of various proposals, often presented as alternatives/options, for measures to combat youth smoking." Id.

Joint Defendants assert that "youth marketing allegations are clearly central to the Government's theory of the case, as well as its claims for relief." Mot. App. B at 2. They claim that documents addressing proposed legislation intended to reduce youth smoking, and addressing the adequacy of such legislation are relevant to the affirmative defenses in this matter. Id. at 3. They argue that "[a]lthough the Government has long been aware of the problem of youth smoking, it failed to adopt restrictions on sales of cigarettes to youth, failed to enforce the restrictions that did exist, and did not prohibit the sale of cigarettes to individuals under the age of 18 on federal property." Joint Defendants therefore contend that the government's youth marketing arguments relate to their First Amendment defenses, as well as their affirmative equitable defenses. Id. at 3-4.

Joint Defendants further contend that documents addressing youth smoking prevalence and initiation and how Joint Defendants' conduct allegedly impacts or influences youth smoking are related to allegations that Joint Defendants' conduct caused youth to begin smoking. Id. at 5-6. Such discussions are relevant to whether the government can satisfy its fraud claim and to Plaintiff's disgorgement model.Id. at 6.

To the extent that these documents "contain discussions and communications assessing the impact cigarette price adjustments would have on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes," these documents "could very well contradict claims or assumptions made by the Government's experts in this litigation." Id. Moreover, to the extent that these documents reflect the potential impact that proposed legislation, penalties, taxes, and settlements would have on federal revenues, such discussions implicate Joint Defendants' affirmative equitable defenses. Id. at 7.

Finally, Joint Defendants assert their belief that their agreement to the MSA prevents the government from proving that a reasonable likelihood of future RICO violations will occur. Therefore, to the extent that the "documents reflect discussions and communications concerning the effectiveness of the MSA, programs funded by the MSA, and other programs (Federal and/or state) that are designed to reduce youth smoking" the discussions "go to the heart of whether the Government can meet its burden of demonstrating that there exists a reasonable likelihood of future misconduct." Id. at 8.

1. PRA079-0027-0027 [CD 2]

"This document is a February 10, 1998 email from Eli G. Attie to Bruce N. Reed, with a not-serious comment about a possible change to upcoming Vice President's tobacco remarks." Reed Decl. at 25; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege.

The email states, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master recommends that the Court overrule the privilege claim for this document. Mr. Attie's comment is in jest; it therefore does not relate to the creation of Administration policy. Moreover, the serious portion of his comment simply approves of changes, and does not reveal the Administration's deliberative process.

2. PRA079-0311-0311 [CD 17]

"This document is October 9, 1998 press guidance concerning a news release of new youth smoking statistics." Reed Decl. at 25; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document. It appears to be a tobacco question and answer, purporting to relate the Administration's established position. It does not appear to be deliberative or predecisional, and neither Plaintiff nor Mr. Reed has provided any contrary indication.

3. PRA079-0343-0343 [CD 20]

"This document is an April 12, 1999 email from Dan J. Taylor to a group of White House personnel seeking guidance as to how to respond to a request from an outside organization for a taped statement from the Vice President to be used by that organization in support of its anti-youth smoking activities and messages." Brown Decl. at 7-8; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. The email reads as follows:

REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED

The document does not relate to the formulation of Administration policy; it relates to scheduling.

4. PRA079-0395-0395 [CD 28]

"This document is two April 13, 1999 emails among Alejandro G. Cabrera, Sarah A. Bianchi, and Melissa B. Ratcliff discussing the preparation of a statement by the Vice President concerning advertised cigarette brands and teen smokers. Mr. Cabrera offers his proposed opening sentence for that statement and Ms. Bianchi suggests a substantive edit to that sentence." Brown Decl. at 8; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege. The document contains a proposed press release regarding the Vice President's activities, and does not contain information solicited and received for the purpose of formulating advice for the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). The Special Master further recommends that the Court overrule the deliberative process claim. Here, the document does not relate to policy deliberations or to the creation of Administration policy, but to a proposed public relations announcement: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."

5. PRA079-0446-0446 [CD 36]

"This document is two August 10, 1999 emails concerning obtaining information about a state's Synar data preparatory to a meeting between the Vice President and the governor of that state: (a) Linda L. Moore to Irma L. Martinez, with copies to Monica M. Dixon and Steven Reich, requesting information; and (b) Ms. Martinez to Ms. Moore, with copies to Mr. Reich and Ms. Dixon, providing the results of a preliminary analysis of Synar data for that state and the status of the review of that analysis." Brown Decl. at 9; Gonzales Decl. Ex. A at 21. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege as Plaintiff has not shown how this document contains information solicited and received by high level presidential advisors for the purpose of formulating advice for the President. The Special Master further recommends that the Court overrule the deliberative process privilege claim. While the email seeks information to be used to advise the Vice President regarding a particular state's compliance with Synar in preparation for a meeting with the governor of that state, it is not "recommendatory in nature," "a draft of what will become a final document" or "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866.

6. PRA172-4128-4128 [CD 45]

"This document is an April 1, 1999 draft statement by the President concerning an announcement by the Centers for Disease Control and Prevention of the results of a study on a Florida youth anti-smoking program, including handwritten edits by OMB." Locke Decl. at 38; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege and presidential communications privilege.

The Special Master recommends that the Court sustain the presidential communications privilege claim, as the document contains a draft statement to be given by the President and the comments of the President's immediate advisers. The Special Master does not believe that Joint Defendants have shown need for this document as they have not demonstrated that similar information is not available to them with due diligence from other sources particularly as they have access to any final version delivered by the President.

7. PRA172-4147-4147 [CD 47]

"This document is a revised April 1, 1999 version of the statement by the President in Challenged Document #45, with further handwritten edits by OMB." Locke Decl. at 38; Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process and presidential communications privileges. Consistent with the recommendation for Challenged Document 45, the Special Master recommends that the Court sustain the presidential communications privilege claim for Challenged Document 47, notwithstanding Joint Defendants' asserted need.

8. PRA172-4844-4845 [CD 145]

"This document is a November 1, 1999 fax cover sheet from Robin Funston, Office of Budget, HHS, to Richard Turman, transmitting language regarding funding for administrative expenses associated with a tobacco youth penalty program that HHS would like included in proposed legislation. By handwritten note, Mr. Turman asks Joshua Gotbaum and Daniel Mendelson for guidance with respect to this proposed language." Locke Decl. at 38. Plaintiff claims the deliberative process privilege.

The Special Master believes that the deliberative process privilege applies as the document contains draft language for a tobacco bill and accompanying report, with a request for guidance on the proposed bill/report language. It therefore is deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants' need arguments apply to this proposal, which seeks to appropriate funds to a program designed to reduce youth smoking. Joint Defendants' arguments focus on government deliberations that assess the adequacy of such legislative proposals; such discussions are not present here.

9. PRA172-4875-4875 [CD 150]

"This document is an October 28, 1999 email from Patrick Locke to Richard Turman and Frank Seidl, with copies to Joshua Gotbaum and Victoria Wachino, offering Mr. Locke's analysis of Sen. Harkin's youth smoking penalty proposal. Mr. Locke also offers suggestions for changes to the proposal to address problems that he sees with it." Locke Decl. at 38-39. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process claim. Here, the email contains Mr. Locke's assessment of a legislative proposal, and his questions regarding, and suggestions to, the proposal. It is therefore deliberative and predecisional in nature. The Special Master further believes, having reviewed Joint Defendants' need arguments, that Joint Defendants have not shown need for discussions regarding the Harkin proposal.

10. PRA172-4878-4878 [CD 152]

"This document is an October 28, 1999 email from Patrick Locke to Cynthia Rice and Victoria Wachino, with copies to Richard Turman and Frank Seidl, discussing issues relating to teen smoking surveys, the reliability of data appearing in one survey (for purposes of determining whether the Administration can compare a full year's survey data with that of only one quarter from the following year), and the statistical uncertainty of teen smoking rates and changes in teen smoking rates." Locke Decl. at 39. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the deliberative process privilege as it discusses Mr. Locke's ideas and opinions regarding a specific smoking study, measuring teen smoking rates in general, and issues with confidence intervals in assessing smoking rates. The Special Master does believe that Joint Defendants' need outweighs Plaintiff's privilege interest. Here, the document addresses issues regarding confidence intervals in assessing youth smoking; such information is relevant to assessing the assumptions and the statistical models used by Plaintiff's experts in this case, and in calculating their disgorgement model. This type of information is not available to Joint Defendants from other sources, and the Special Master does not believe that disclosure of documents containing discussions regarding statistics likely will chill future agency deliberations. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

11. PRA172-4908-4912 [CD 154]

This document consists of three undated papers that Mr. Locke believes were "likely [created in] late 1999" that relate to "a proposal to be added to the Labor/HHS appropriations bill to impose a youth smoking assessment to combat youth smoking: (a) draft statement describing the problem of youth smoking and summarizing the proposal for a youth smoking assessment; (b) `Draft Language for Insertion into the L[abor]/HHS Appropriations Bill,' setting forth the proposed assessment; and (c) `Responses to Concerns about the Proposal (for internal use only),' addressing concerns relating to potential interaction with the MSA, CBO scoring and point of order issues, Department of Justice concerns about parts of the proposal, and the precedent for such an assessment." Locke Decl. at 39. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, which, as a draft, reflects the suggestions of Administration employees and not the policy of the Administration. The Special Master does believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest, as it relates to efforts to curb youth smoking, which are highly relevant to the claims and defenses, and because release of the document is unlikely to create a significant risk of future chill.

12. PRA172-4930-4931 [CD 159]

"This document is an October 20, 1999 email from Patrick Locke to Joshua Gotbaum, with copies to Richard Turman, Frank Seidl, Victoria Wachino, and Susanne Lind, discussing how to use data from a smoking survey to calculate tobacco company profits attributable to youth smoking (for purposes of determining what to include in the Administration's proposed legislation). Mr. Locke discusses several different options for the calculations, to be discussed further that afternoon." Locke Decl. at 39.¹⁶ Plaintiff claims the deliberative process privilege.

16 Mr. Locke states "[a]lthough 4931 follows 4930 sequentially in this container of documents, it is actually the missing portion of the January 15, 1999 email from Mr. Locke to Jennifer Forshey described in Challenged Document #158." Locke Decl. at 39-40. The privilege claim for page 4931 should be sustained, consistent with the recommendation for Challenged Document 158.

The Special Master recommends that the Court sustain the privilege claim for page 4930, as it discusses the effect that different assessment numbers could have on federal revenues. It therefore is deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have not shown need for this document, as they have argued that documents containing discussions regarding the impact that tobacco assessments could have on federal revenues are relevant to their affirmative equitable defenses. As these defenses have been dismissed from this case, the Special Master does not believe that these discussions are sufficiently relevant to justify overcoming Plaintiff's privilege interest.

13. PRA172-4932-4934 [CD 160]

Mr. Locke states that this document compiles "six emails, including five from Jeffrey A. Farkas, discussing legislative strategy for an Administration tobacco assessment proposal to be added to a FY 2000 appropriations bill." Locke Decl. at 40. They are: "(a) July 6, 1999, from Mr. Farkas to Mark Miller, William G. White, and Anne E. Tumlinson, discussing potential scoring and jurisdictional problems with the Administration proposal and the prospects for success; (b) July 7, 1999, from Victoria Wachino to Richard Turman, Mr. Farkas, and Jennifer Forshey, with a copy to Joshua Gotbaum, inquiring briefly as to the status of an HHS-proposed change; (c) July 8, 1999, from Mr. Farkas to Ms. Wachino, with copies to Mr. Turman, Ms. Forshey, and Mr. Gotbaum, responding to Ms. Wachino; (d) July 8, 1999, from Mr. Farkas to Mr. Miller, Ms. Tumlinson, and Mr. White, relating a conversation with Mr. Gotbaum about the status and prospects for passage of the Administration proposal; and (e) October 21, 1999 (two emails), from Mr. Farkas to Ms. Wachino, forwarding (a)-(d)."Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 4933-4934, which appear to relate to a policy decision made, and to discuss and explain that decision. Mr. Locke states that the emails relate to a "an Administration tobacco assessment proposal to be added to a FY 2000 appropriations bill," id., and in his email, Mr. Farkas notes that they are " REDACTED" which leads the Special Master to conclude that that portion of the document is not predecisional. Page 4932, however, lays out possible legislative strategy and should be protected. The Special Master does not believe that Joint Defendants have expressed a need for the Administration's legislative strategy.

14. PRA172-4937-4939 [CD 162]

This document contains email discussion of "the possible effect of proposed (by HHS) Federal legislation to establish a youth smoking assessment on the tobacco companies' obligations under the MSA." Locke Decl. at 40. The emails are as follows: "(a) December 10, 1998, from William G. White to Daniel Mendelson and Christopher Jennings, with copies to Barry T. Clendenin, Mark Miller, Richard Turman, and Anne E. Tumlinson, discussing the Federal legislation offset provision in the MSA (first portion of the email only); (b) June 30, 1999, from Jeffrey A. Farkas to Rosalyn Rettman, with copies to a large group of OMB personnel, requesting assistance in drafting a youth penalty assessment to avoid the application of the provision discussed in (a) (latter portion of the email only; the initial portion appears in Challenged Document #168); (c) July 1, 1999, from Mr. Farkas to Ms. Rettman and Arthur Stigile, forwarding two alternative legislation provisions suggested by Robert Kilpatrick to address one of the concerns; (d) July 1, 1999, from Mr. Stigile to Mr. Farkas, with a copy to Ms. Rettman, offering his opinion on (c); and (e) July 2, 1999, from Ms. Rettman to Mr. Farkas, offering her opinion on (c)." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. It contains discussions among EOP employees regarding the MSA and proposed language for legislation addressing MSA spending. Parts of the document contain email portions with questions regarding the settlement and options for future action, e.g., " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " Having reviewed Joint Defendants' need arguments, the Special Master does not believe that they have shown need for the discussions contained in this document.

15. PRA172-4943-4943 [CD 164] PRA172-4944-4944 [CD 165]

Mr. Locke explains that "Challenged Documents #164 and #165 belong together as one document, . . . an October 21, 1999 email from Jeffrey A. Farkas to Victoria Wachino, with a copy to Mark Miller, forwarding three earlier emails: (a) July 1, 1999, from Mr. Farkas to Cynthia Rice, with copies to a large group of OMB personnel, relaying the legal opinion of OMB General Counsel concerning the possible effect of proposed Federal legislation to establish a youth smoking assessment on the tobacco companies' obligations under the MSA, further discussing the procedural issue raised by Ms. Rice in an earlier email, and forwarding two suggested alternative legislative proposals drafted by OMB General Counsel that will be provided to HHS for its review; (b) July 2, 1999, from Joshua Gotbaum to Mr. Farkas, with copies to Daniel Mendelson, Ms. Wachino, and Rosalyn Rettman, raising questions about (a); and (c) July 6, 1999, from Mr. Farkas to an unidentified group, providing clarification of his earlier email and informing the addressees of further work to be done on this matter, including other options being discussed that might enhance chances of passage of the Administrationproposed tobacco legislation." Locke Decl. at 41. Plaintiff claims the deliberative process privilege, as well as the attorney-client privilege for Challenged Document 165.

The Special Master recommends that the Court sustain the deliberative process privilege claim for these documents, which encompass, in part, the discussions contained in Challenged Document 162. Consistent with the recommendation for Challenged Document 162, the Special Master does not believe that Joint Defendants have shown need for these documents. In addition, as Challenged Document 165 reveals confidential communications made to OMB's Office of General Counsel, it qualifies for protection under the attorney-client privilege.

16. PRA172-4946-4947 [CD 166]

"This document is an October 21, 1999 email from Jeffrey A. Farkas to Victoria Wachino, forwarding two July 6, 1999 emails: (a) from Ms. Wachino to Cynthia Rice, with copies to Joshua Gotbaum, Daniel Mendelson, Mr. Farkas, and Richard Turman, discussing ongoing efforts to craft a legislative provision concerning youth smoking assessments/penalties that will avoid the problem discussed in Challenged Document #164/165; and (b) from Mr. Farkas to a group of OMB Health Division personnel, forwarding (a)." Locke Decl. at 41. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 4947, which contains only the email copy list and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 4946, which discusses efforts made "REDACTED REDACTED REDACTED REDACTED REDACTED." Consistent with the recommendation for the other documents addressing this issue, the Special Master does not believe that Joint Defendants have shown need for this document.

17. PRA172-4955-4957 [CD 168]

Plaintiff has released pages 4956-4957, and continues to claim the deliberative process privilege for page 4955, which "is an October 21, 1999 email from Richard Turman to Victoria Wachino, forwarding an October 20, 1999 email from Jeffrey A. Farkas to Frank Seidl, with copies to Mark Miller, Andrew Scott, and Mr. Turman, in turn forwarding and discussing briefly a June 30, 1999 email from Mr. Farkas to Rosalyn Rettman, with copies to an unidentified group of recipients (only the initial part of the email is included in this document; the latter part appears in Challenged Document #162), requesting assistance with the drafting of a legislative provision levying a youth smoking assessment on the tobacco companies." Locke Decl. at 41-42.

The Special Master has reviewed this document and finds that it is related to an email contained within Challenged Document 162. Consistent with the recommendation for Challenged Document 162, the Special Master recommends that the Court sustain the privilege claim for page 4955 of Challenged Document 168, notwithstanding Joint Defendants' asserted need.

18. PRA172-5077-5088 [CD 179]

"This document is a July 24, 1998 draft Treasury paper entitled `Effects of Non-Price Initiatives to Reduce Teen Smoking.'" Locke Decl. at 42. It "analyzes the effectiveness of certain proposed measures to reduce youth smoking that do not relate to the price of cigarettes and, in some cases, attempts to provide a quantitative estimate of the amount by which a particular proposal would reduce youth smoking" as well as "restrictions on tobacco sales, possession, and use; enforcement of restrictions on sales, possession, and use; and advertising and promotion."Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege; as a draft, it reflects the opinions of agency employees, and not the policy of the Administration. Coastal States, 617 F.2d at 866. Therefore it is deliberative and predecisional in nature.

The Special Master does believe that Joint Defendants' need outweighs Plaintiff's privilege claim. First, the issue of what measures can effectively reduce youth smoking is relevant to the claims and defenses in this case. See Mot. App. B at 5-6. Second, Plaintiff has not stated whether this document was intended for final public release or for internal use only; therefore, it is not clear whether similar information is available from other sources. Finally, the Special Master does not believe that the danger of future chill on agency discussions is particularly strong. Here, the document does not identify any particular author or authors, it is significantly complete, and appears to only be missing some footnotes. Therefore, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

19. PRA172-5173-5175 [CD 188]

"This document is a March 22, 2000 memorandum transmitting to a large group of White House and OMB officials, including Al Gore, John Podesta, Jack Lew, Beth Nolan, Bruce N. Reed, and Gene Sperling a draft of an upcoming radio address to be given by the President on March 24, 2000, regarding combating youth smoking and a Supreme Court ruling regarding regulation of tobacco by the FDA." Reed Decl. at 25; Gonzales Decl. Ex. A at 13-14. Mr. Reed explains that "[t]he memorandum seeks comments on the draft radio address, and the draft radio address contains handwritten edits and suggestions for changes." Id. Plaintiff claims the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege, as this document is a draft radio address to be given by the President and was being reviewed by immediate presidential advisors for the purpose of formulating advice for the President. Joint Defendants have not shown need for this document as they have not demonstrated that similar information is not available to them with due diligence from other sources as they do have access to the final version of the President's address.

20. PRA172-5176-5177 [CD 189]

"This document is an undated (but probably September 1999) draft proposal entitled `Providing On-Going Incentives to Reduce Underage Smoking.'" Locke Decl. at 42. It "describes a proposal under consideration in the Executive Branch to reduce youth smoking by imposing assessment penalties per underage smoker against tobacco companies over time," and "sets forth the proposal and provides an analysis of its anticipated effectiveness. It also analyzes two options for implementing the proposal and sets forth the pros and cons of each implementation option." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege, as it contains a proposal for reducing youth smoking, an analysis of the proposal, and options for implementing the proposal. It is therefore deliberative and predecisional in nature.

The Special Master does believe that Joint Defendants' need for the document outweighs the privilege claim. First, the intent of the proposal is to suggest ways the Administration can reduce youth smoking, which is an issue directly relevant to the claims and defenses in this case. See Mot. App. B at 2-8. Second, it is unknown whether, but appears from the document's context unlikely that, similar information is available to Joint Defendants from other sources. Finally, the document does not identify any particular employee or employees as the proponent of the proposal; therefore the danger of future chill to agency discussions is slight. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

21. PRA172-5179-5179 [CD 190]

"This is an August 3, 1999 draft document entitled `Possible Youth Smoking Assessment on Tobacco Manufacturers.'" Locke Decl. at 42. It "describes a proposal under consideration in the Executive Branch to reduce youth smoking by requiring tobacco companies to pay a fixed assessment penalty per underage smoker," and "references the specific dollar amount of the assessment under consideration and discusses how the assessment could be implemented." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege, as it contains a proposal for REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." It is therefore deliberative and predecisional.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege. Joint Defendants' need arguments for discussions regarding penalizing the industry relate to the need for analyses of the impact that the proposed penalties have on youth smoking, see Mot. App. B at 5-6; here, the document simply addresses penalties without an assessment of the impact on youth smoking the penalty may or may not have. Therefore, the document is not sufficiently relevant to Joint Defendants' claimed need to justify overcoming Plaintiff's privilege interest.

22. PRA172-5180-5182 [CD 191]

This document contains an email discussion relating to a legal opinion "regarding the effect proposed federal legislation establishing a youth smoking assessment might have on payments required under the MSA. The legal opinion includes suggested draft language for the proposed legislation." Locke Decl. at 43. The first email is dated July 1, 1999, and is "from Cynthia Rice to Joshua Gotbaum, Daniel Mendelson, Mr. Farkas, and Mark McClellan, with a copy to J. Eric Gould, which does not contain the legal opinion but rather forwards to the recipients edits made by Ms. Rice to a document drafted by HHS regarding an amendment proposed by Senator Harkin." Id. The second and third emails are duplicates of Challenged Documents #164 and #165, and are, respectively, from Mr. Farkas to Ms. Rice, with copies to Mr. Gotbaum, Mr. Mendelson, Victoria Wachino, Gina Mooers, Mark Miller, Richard Turman, Frank Seidl, Jennifer Forshey, Melany Nakagiri, William G. White, Anne E. Tumlinson, and Marc Garufi, responding to the first email and "explaining the legal opinion offered by the OMB Office of General Counsel, including draft language suggested by the Office of General Counsel, and recommending that HHS be made aware of the draft language; and "from Mr. Gotbaum to Mr. Farkas, with copies to Mr. Mendelson, Ms. Wachino, and Rosalyn Rettman, raising a question about the purpose of the proposed language and setting forth Mr. Gotbaum's opinion about what the strategic priority should be." Id. The final email is dated July 6, 1999, and is from Ms. Wachino to Wendy Taylor and forwards the first three. Plaintiff claims the deliberative process privilege and attorney-client privilege.

The Special Master believes that the document qualifies for the attorney-client privilege as it reveals a request for legal advice: " REDACTED REDACTED REDACTED REDACTED REDACTED ," as well as the response, which is based on confidential client communications.¹⁷

17 The Special Master need not consider the deliberative process privilege claim as the attorney-client privilege provides greater protection inasmuch as a challenging party may not assert a showing of need to overcome the attorney-client privilege.

23. PRA172-5185-5191 [CD 193]

This document comprises five emails from July 29-30, 1999 "among Cynthia Rice, Joshua Gotbaum, and Richard Turman, with copies to a large group of OMB personnel, discussing issues to be considered in analyzing and scoring a tobacco youth assessment." Locke Decl. at 43. The first is "from Mr. Gotbaum to Ms. Rice, Mr. Turman, and a large group of OMB personnel, reporting on a conversation with Leonard Burman about issues in scoring the youth smoking assessment and the estimated number of underage smokers." Id. The second is from Ms. Rice to Mr. Gotbaum, responding to the first "and discussing a previous (different) estimate by Treasury." Id. The third is from Mr. Turman to Ms. Rice, and responds to the second and "explain[s] the reason for the two different numbers." Id. The fourth is from Ms. Rice to Mr. Turman "offering further observations/opinions," and the final is from Ms. Rice, forwarding a revised version of the fourth." Id. at 43-44. Mr. Locke explains that "[t]he attachments are not part of this document." Id. at 44. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 5191, which contains only an email copy list and no substantive information. The Special Master does believe that the remainder of the document qualifies for the privilege, as it contains a number of emails addressing what the youth smoking assessment should be, how to calculate the assessment, and the federal revenues that would result from certain assessments. The discussions are deliberative and predecisional in nature.

The Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege claim, as the discussions primarily center on the amount of lifetime profits the tobacco companies earn per youth smoker. This information is directly relevant to calculations Plaintiff's experts have made in this litigation, see Mot. App. B at 6, and is not available to Joint Defendants from other sources. The Special Master therefore believes that Joint Defendants' need outweighs Plaintiff's concerns regarding the possible chilling effect that could result from disclosure of this information.

24. PRA172-5192-5192 [CD 194]

"This document is a July 30, 1999 email from Cynthia Rice to Joshua Gotbaum discussing how to characterize a proposed youth smoking assessment." Locke Decl. at 44. It "sets forth Ms. Rice's opinion as to how the Administration should characterize a proposal to assess a youth smoking penalty and sets forth the basis of her opinion." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this email, as it contains Ms. Rice's opinion on the assessment language: "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special

Master, having reviewed Joint Defendants' need arguments, notes that Ms. Rice's comments are not relevant to any of their need claims.

25. PRA172-5193-5194 [CD 195]

This document comprises an exchange of emails between Joshua Gotbaum and Patrick Locke from July 28-29, 1999 discussing a proposed youth smoking assessment. The first is "from Mr. Locke to Mr. Gotbaum, with a copy to Richard Turman, offering his preliminary calculations of revenue under different scenarios." Locke Decl. at 44. The second is from Mr. Gotbaum to Mr. Locke, with copies to Mr. Turman, Daniel Mendelson, and Wendy Taylor, responding to the first, and the third is from Mr. Gotbaum to Mr. Locke, Mr. Turman, and Hugh Connelly, with a copy to Ms. Taylor, requesting further calculations/information from Mr. Locke. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it contains discussions regarding the possible effect of proposed youth smoking assessments on the federal budget: " REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master further believes that Joint Defendants have not shown need for this document; they have argued that documents relating to the impact that tobacco revenues have on the federal budget are relevant to their affirmative equitable defenses, which are no longer part of this case.

26. PRA172-5195-5195 [CD 196]

"This document is a July 29, 1999 email from Patrick Locke to Joshua Gotbaum with copies to Hugh Connelly, Richard Turman, and Wendy Taylor, written in response to the third email described in Challenged Document #195, discussing how to present the per-pack equivalent of the youth smoking assessment." Locke Decl. at 44. Mr. Locke explains that, in the email, he "offers his opinion of how the quantitative figures in the proposal should be adjusted and his opinion about whether a particular figure should be included in the description at all." Id. Plaintiff claims the deliberative process privilege.

Similar to Challenged Document 195, to which this document was written in response, this document addresses a proposal for a tobacco assessment for youth smokers, and Mr. Locke's comments to the proposal. It is deliberative and predecisional in nature (" REDACTED REDACTED REDACTED REDACTED ."). The Special Master does not believe that Joint Defendants have shown need for documents that address the mechanics of an assessment against the industry, without discussions regarding the actual effect the assessment would have on youth smoking rates.

27. PRA172-5196-5197 [CD 197]

"This document is a July 29, 1999 email from Patrick Locke to Frank Seidl, with copies to a large group of OMB personnel, regarding OMB's scoring of Senator Harkin's proposed tobacco youth assessment." Locke Decl. at 45. Mr. Locke explains that it contains his "responses to proposed edits to a document [he] was preparing regarding how receipts from the proposed Harkin assessment would be measured in the budget," and "offers his explanation, in response to an inquiry, of the basis for scoring receipts from the proposed Harkin assessment in a particular manner, and expresses his opinion about whether it is justifiable to score this proposal differently than previous assessment proposals." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 5197, which contains only an email distribution list and no substantive information. The Special Master does believe that page 5196 qualifies for the privilege, as it contains a discussion of the scoring of different tobacco bills — specifically, Mr. Locke asks, " REDACTED REDACTED " The Special Master does not believe that Joint Defendants have shown need for the discussions contained here, as they primarily relate to the effect of the assessments and the scoring on the federal budget; Joint Defendants have argued that such deliberations are relevant to their affirmative equitable defenses, which are no longer a part of this case.

28. PRA172-5198-5200 [CD 198]

This document contains an email dialogue from July 29, 1999 "discussing issues to be considered in scoring the tobacco youth assessment penalty proposed by Senator Harkin." Locke Decl. at 45. They are as follows: "(a) from Patrick Locke to Richard Turman, with copies to Frank Seidl, Mary Barth, Arthur Stigile, Susanne Lind, and Hugh Connelly, proposing a method for scoring the proposed Harkin tobacco penalty and explaining the rationale for the proposal; (b) from Mr. Turman to Mr. Locke, with copies to Mr. Seidl, Ms. Barth, Mr. Stigile, Ms. Lind, and Mr. Connelly, responding to (a), indicating that he would like to discuss his questions and observations regarding (a), and asking whether Mr. Locke has made progress regarding clearance from another Executive branch agency; (c) the email described in (a) above repeated in the string with Mr. Turman's observations and questions inserted; and (d) from Mr. Turman to Joshua Gotbaum, with copies to a large group of OMB personnel, forwarding and providing a brief explanation of (a)-(c)." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim; here, the emails assess the scoring of a proposed youth smoking assessment, and the mechanics of its implementation: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." It is therefore deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have shown need for this document. Here, the document relates to the effect the assessment could have on federal revenues. Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses. See Mot. App. B at 7. Because these defenses are no longer part of the case, Joint Defendants have not sufficiently established the relevancy of these discussions in order to justify overcoming Plaintiff's privilege interest.

29. PRA172-5201-5202 [CD 199]

"This document is a July 29, 1999 email from Joshua Gotbaum to a large group of OMB employees concerning discussions with the Department of Treasury on a tax aspect of a proposed tobacco youth smoking assessment," which "forwards an analysis of the estimated receipts of two different types of assessments and informs the recipients of the status of discussions with the Department of Treasury with regard to tax offsets." Locke Decl. at 45. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Gotbaum notes in his email that, " REDACTED REDACTED REDACTED ." The email also contains a chart delineating the effects of the proposed assessment. The Special Master does not believe that Joint Defendants have shown need for this document, as they have argued that discussions pertaining to the effects of tobacco payments on the federal revenues are relevant to their affirmative equitable defenses, which are no longer part of this case, and therefore not sufficiently relevant to justify overcoming Plaintiff's privilege claim.

30. PRA172-5203-5203 [CD 200]

"This document is a July 29, 1999 email from Richard Turman to Joshua Gotbaum, with copies to a large group of OMB personnel, regarding what figure to use for the number of youth smokers for purposes of evaluating a proposed youth tobacco assessment. The email evaluates the appropriateness of different numerical estimates of the number of youth smokers and reports on the views of the Department of Health and Human Services as to how penalties should be calculated and upon which surveys the government should rely in estimating the number of youth smokers." Locke Decl. at 46. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim as the document appears to explain Administration policy already made; namely, a bill or amendment that had already been sent to Congress: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Accordingly, as the email discusses a document that was sent from the Executive Branch to Congress, it is not predecisional and not protected by the privilege.

31. PRA172-5204-5204 [CD 201]

"This document is a July 29, 1999 email from Patrick Locke to Joshua Gotbaum, with copies to a large group of OMB personnel, discussing a conversation that Mr. Locke and Mary Barth had with Treasury regarding scoring assumptions for the youth smoking tobacco assessment." Locke Decl. at 46. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege as it contains a discussion of the scoring of the youth smoker tobacco assessment, and offers the opinions of government employees as to how the assessment should be scored. The Special Master further believes that Joint Defendants have not shown need for this document, as it essentially relates to the impact that tobacco assessments will have on the federal budget. Joint Defendants have argued that such discussions are relevant to their now-dismissed affirmative equitable defenses.See Mot. App. B at 7.

32. PRA181-0207-0210 [CD 216]

"This document is a May 11, 2000 email from Kathy Weatherly to Monica M. Dixon, Timothy P. Morningstar, Ronna A. Freiberg, Paul Thornell, and Brian A. Reich, transmitting and discussing attached talking points concerning the application of the Synar Amendment to a particular state for possible use by the Vice President should the subject arise during a meeting between the Vice President and the governor of that state. Ms. Weatherly's email provides her analysis of a letter sent by the governor of the state to the Vice President. The talking points include detailed suggestions as to what the Vice President could say to the governor about the Synar Amendment and its application to the state." Brown Decl. at 9; Gonzales Decl. Ex. A at 21-22. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0208, which contains only an insert indicating a hex dump. The Special Master does not believe that the presidential communications privilege applies to the remainder of the document. Here, the discussions prepare information to be used to formulate advice for the Vice President, not the President. Plaintiff has offered no legal arguments that establish that the privilege should be extended to communications involving the Vice President which do not involve formulating advice for the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.").

The Special Master does believe that the deliberative process privilege applies to pages 0207 and 0209-0210, as the document proposes a Vice Presidential response to a letter regarding SAMHSA compliance, and is deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have shown need for these pages, as they have demonstrated that deliberations discussing Synar enforcement are relevant to the claims and defenses in this matter. Mot. App. B at 4. Moreover, this type of information is not available to Joint Defendants from other sources. While recognizing Plaintiff's concern that disclosure of internal governmental deliberations could result in future agency chill, the Special Master believes that the balance of interests tips in favor of disclosure to Joint Defendants.

33. PRA181-0325-0328 [CD 223]

"This document is a March 23, 2000 email from Anna Richter to Broderick Johnson, Lisel Loy, Jeffrey A. Shesol, Bruce N. Reed, J. Eric Gould, and Heather Hurlburt transmitting proposed edits by Eric P. Liu to a draft radio address scheduled to be given by the President on March 24, 2000 concerning efforts to combat youth smoking." Reed Decl. at 26; Gonzales Decl. Ex. A at 14. Mr. Reed explains that "[t]he email transmits the draft radio address and proposed edits both in the text of the email and as an attachment, and Mr. Liu's electronic mark-up of the radio address." Id. Plaintiff claims the deliberative process and presidential communications privileges.

This document is an earlier draft of Challenged Document 188. Consistent with the recommendation for Challenged Document 188, the Special Master recommends that the Court sustain the presidential communications privilege, notwithstanding Joint Defendants' claimed need.

34. PRA181-0349-0352 [CD 226]

This document consists of two March 24, 2000 emails "transmitting a draft speech by the President concerning `Framing the Domestic Agenda,' which mentions in passing legislation allowing FDA regulation of tobacco: (a) March 24, 2000, James T. Edmonds to Joshua Gottheimer and Paul D. Glastris; and (b) March 24, 2000, Mr. Gottheimer to Mr. Glastris." Reed Decl. at 26; Gonzales Decl. Ex. A at 14. Plaintiff claims the deliberative process and presidential communications privilege.

The Special Master recommends that the Court sustain the presidential communications privilege for the President's draft speech as it contains information solicited and received by presidential advisers for the purpose of advising the President. Joint Defendants have not shown need for this document, as they have not shown that similar information is not available to them with due diligence from other sources, particularly as they have access to the final version.

35. PRA181-0353-0355 [CD 227]

"This document is a March 28, 2000 email from Anna Richter to Jason H. Schechter, Andrea Kane, Eugenia Chough, and J. Eric Gould transmitting March 28, 2000 press guidance concerning actions to be taken by the Clinton Administration following the Supreme Court decision on the FDA tobacco rule." Reed Decl. at 26; Gonzales Decl. Ex. A at 14. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0353, which contains a non-substantive email and hex dump. The Special Master further recommends that the Court overrule the privilege claims for the questions and answers contained on pages 0354-0355. The presidential communications privilege does not apply as Plaintiff has not shown that this information was compiled by immediate presidential advisers for the purpose of formulating advice for the President. Additionally, the deliberative process privilege does not apply as these questions and answers are not in draft form and appear to convey the policy of the Administration, and therefore are not predecisional.

36. PRA181-0361-0363 [CD 228]

"This document is a March 22, 2000 email from Paul D. Glastris to James T. Edmonds and Joshua Gottheimer transmitting an earlier draft of the document described in Challenged Document #226. Mr. Glastris includes his comments and explanations regarding the draft remarks, including reasons for changing the draft remarks from a prior draft (not included in this email transmission) based on prior conversations with other advisors to the President." Reed Decl. at 26; Gonzales Decl. Ex. A at 14. Plaintiff claims the deliberative process and presidential communications privileges.

As Mr. Reed notes, this document is an earlier draft of Challenged Document 226. Consistent with the recommendation for Challenged Document 226, the Special Master recommends that the Court sustain the claim of presidential communications privilege for Challenged Document 228, notwithstanding Joint Defendants' asserted need.

37. PRA181-0364-0365 [CD 229]

"This document is an April 18, 2000 email from J. Eric Gould to Bruce N. Reed and Eric P. Liu, with copies to Andrea Kane, Anna Richter, Cathy Mays, and Eugenia Chough, addressing FDA/Tobacco meetings with the staff of Senators Frist and Kennedy to discuss the FDA/Tobacco proposal put together by Senator Frist's staff." Reed Decl. at 27; Gonzales Decl. Ex. A at 14. Mr. Reed notes that the "email includes Mr. Gould's opinion on the effectiveness of the proposal and provides advice on whether the proposal would provide FDA regulatory authority in a manner consistent with the Clinton Administration's policies." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege for this document, as Plaintiff has not shown that these discussions relate to the formulation of advice to be given to the President with respect to presidential decisionmaking. The Special Master does believe that the deliberative process privilege applies as Mr. Gould provides an assessment of legislative proposals, and his opinion that " REDACTED ," and as the discussion pertains to the creation of an Administration position regarding proposed legislation. The Special Master does not believe that Joint Defendants can show need for this document as the positions expressed are still candid and personal, thereby creating the possibility of threat to future agency deliberations, and as Joint Defendants would have access to any final position the Administration took regarding proposed legislation.

38. PRA181-0388-0392 [CD 233]

"This document is an April 24, 2000 email from J. Eric Gould to Eric P. Liu, with copies to Andrea Kane, Anna Richter, Bruce N. Reed, and Cathy Mays, discussing alternative ways of dealing with the proposal offered by Senator Frist on the FDA's authority to regulate tobacco." Reed Decl. at 27; Gonzales Decl. Ex. A at 115. Mr. Reed explains that "Mr. Gould includes his analysis and opinion of how the new proposal substantively differs from prior legislative proposals; provides various options for the Administration to consider, including his views on the effectiveness of each option; and offers his opinion on why this proposal is being offered." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master believes that the presidential communications privilege does not apply as, similar to Challenged Document 229, Plaintiff has not demonstrated that the analysis was provided to high-level presidential advisors for the purpose of formulating advice for the President. Also similar to Challenged Document 229, the Special Master recommends that the Court sustain Plaintiff's deliberative process claim, and find that Joint Defendants have not shown need for these preliminary discussions.

39. PRA181-0446-0448 [CD 238]

"This document is a September 10, 2000 email from Mark Penn, a consultant to the White House and the Administration, to Thomas L. Freedman, Paul D. Glastris, and B.J. Lepard, transmitting and providing his opinion and advice on strategy with regard to the tobacco and media issues addressed in draft Presidential remarks on media and violence that [are] included in this email." Reed Decl. at 27; Gonzales Decl. Ex. A at 15. Plaintiff claims the deliberative process and presidential communications privileges for this document.

The Special Master recommends that the Court overrule the privilege claims for page 0448, which is blank. The Special Master further recommends that the Court sustain the presidential communications privilege for President Clinton's draft speech contained on pages 0446-0447. The Special Master does not believe that Joint Defendants have shown need for this document, as they have not shown that the draft version is directly relevant to a central issue in this case, and they have not demonstrated that they are unable to discover similar information with due diligence from other sources, particularly as they have access to any final version of the President's speech.

40. PRA181-0449-0449 [CD 239]

"This document is a September 10, 2000 email from B.J. Lepard to Paul D. Glastris containing his opinions on the impact of certain proposed statements in the draft Presidential remarks described in Challenged Document #238 as well as provides suggestions for new statements in the draft document and additional points the President could make regarding Administration's overall policies with respect to the media and tobacco." Reed Decl. at 28; Gonzales Decl. Ex. A at 15. Plaintiff claims the deliberative process and presidential communications privileges for this document.

As this document relates to Challenged Document 238, consistent with the recommendation for that document, the Special Master recommends that the Court sustain the presidential communications privilege claim for Challenged Document 239, notwithstanding Joint Defendants' assertion of need.

41. PRA181-0512-0513 [CD 256]

"This document is a July 6, 2000 email from Lowell A. Weiss to Christopher M. Wanken forwarding his draft of a President's radio address script setting forth the Administration's legislative priorities, with a brief reference to protecting children from tobacco, to Mr. Wanken and discussing briefly the circumstances of and reasons for his doing so (the need for quick review so that he can get the draft to Gene Sperling for his review and then to John Podesta for his review.)" Reed Decl. at 28; Gonzales Decl. Ex. A at 15. Plaintiff claims the deliberative process and presidential communications privileges for this document.

The Special Master recommends that the Court sustain the presidential communications privilege claim for the President's draft speech. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that they are unable to discover similar information, such as the final speech, with due diligence, and as they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

42. PRA181-0514-0516 [CD 257]

"This document consists of three emails commenting and deliberating on what issues should be included in an Administration statement on tobacco to be issued in conjunction with a Presidential radio address." Reed Decl. at 28; Gonzales Decl. Ex. A at 15. The first is dated July 7, 2000, and is "from J. Eric Gould to Jason Furman, with copies to Anna Richter, Andrea Kane, Karin Kullman, Joanne E. Slaney, Broderick Johnson, and Lisa M. Kountoupes, providing his opinions on the materials relating to tobacco that should be included in the statement, suggesting particular issues that should be addressed, and recommending how those issues should be addressed." Id. The second is dated July 7, 2000, from Ms. Kullman to Mr. Gould, with copies to Mr. Furman, Ms. Richter, Ms. Kane, Ms. Slaney, Mr. Johnson, Ms. Kountoupes, and Devorah R. Adler, replying to the first email and "providing her views on the materials that should be used in the statement and how the tobacco issues should be handled." Id. The third is dated July 7, 2000, and is from Ms. Kane to Ms. Kullman, with copies to Barbara Chow, Ms. Kountoupes, Ms. Slaney, Mr. Furman, Michael Gehrke, Ms. Adler, Mr. Johnson, Ms. Richter, and Mr. Gould, responding to the first two emails and providing further suggestions. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0516, which contains only the email copy list and no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege claim for pages 0514-0515, which contain discussions of and edits to a draft speech to be given by the President, and therefore reflects information solicited and received by presidential advisers for the purpose of formulating advice for the President. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's speech, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

43. PRA181-0568-0572 [CD 269]

"This document consists of two emails transmitting and discussing an attached draft Presidential speech prepared by Heather Hurlburt — `President William J. Clinton Remarks to Association of Trial Lawyers of America,' including references to tobacco (need for Congressional legislation on the FDA, not interfering with the Federal lawsuit), gun safety, Patient's Bill of Rights, and nominations of judges." Reed Decl. at 29; Gonzales Decl. Ex. A at 15-16. The first email is dated July 28, 2000, and is from "Ms. Hurlburt to a large group of White House personnel attaching the draft speech and requesting input." Id. The second is dated July 28, 2000, and is from Bruce N. Reed to Andrea Kane, Devorah R. Adler, and Leanne A. Shimabukuro, forwarding the first and offering his opinion on the substance of certain sections. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0569, which contains only an email copy list and a hex dump. The Special Master further recommends that the Court overrule the privilege claims for the emails on page 0568, which contain non-substantive discussions regarding the attached draft speech. Pages 0570-0572 are protected by the presidential communications privilege; they contain a draft speech to be given by the President. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's speech, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

44. PRA181-0573-0576 [CD 270]

"This document is essentially a duplicate of Challenged Document #269, with two emails transmitting and discussing a slightly-earlier version of the draft of the President's speech." Reed Decl. at 29; Gonzales Decl. Ex. A at 16. The first is dated July 28, 2000, and is from "Heather Hurlburt to Sarah Wilson, Eric S. Angel, Van-Alan H. Shima, Devorah R. Adler, Christopher C. Jennings, Deanne E. Benos, and Christina S. Ho, attaching the draft speech and requesting comments and guidance on specific sections." Id. The second email forwards the first to Andrea Kane, and comments on the particular sections of the draft document on which she plans to provide guidance. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0573, which contains non-substantive emails. Consistent with the recommendation for Challenged Document 269, the Special Master recommends that the Court sustain the presidential communications privilege claim for the remainder of Challenged Document 270, notwithstanding Joint Defendants' asserted need.

45. PRA181-0882-0882 [CD 298]

"This document is a May 16, 2000 email from James T. Edmonds to J. Eric Gould transmitting a draft of President Clinton's May 17, 2000 remarks on tobacco advertising, prepared by Mr. Edmonds and Joshua Gottheimer. The proposed statement discusses tobacco company advertising directed at minors, the Federal lawsuit, and the need for congressional legislation to combat youth smoking." Reed Decl. at 29; Gonzales Decl. Ex. A at 16. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for the President's draft speech. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's speech, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

46. PRA181-0885-0887 [CD 299]

"This document is a May 16, 2000 email from James T. Edmonds to a large group of White House personnel (and two White House consultants) transmitting the draft statement by President Clinton that is described in Challenged Document #298." Reed Decl. 30; Gonzales Decl. Ex. A at 16. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claim for page 0885, which contains only the email distribution list and no substantive information. Pages 0886-0887 comprise the draft speech contained in Challenged Document 298. Consistent with the recommendation for Challenged Document 298, the Special Master recommends that the Court sustain the presidential communications privilege claim, notwithstanding Joint Defendants' asserted need.

47. PRA181-0923-0924 [CD 311]

"This document is a November 30, 1999 email from Cynthia A. Rice to Ripley Forbes, forwarding an email of the same date from Ms. Rice to Thomas J. Perrelli and Bill Hall, with copies to J. Eric Gould and Eugenia Chough, requesting that Mr. Perrelli and Mr. Hall review Ms. Rice's draft tobacco press guidance on the FDA Supreme Court case." Reed Decl. at 30; Gonzales Decl. Ex. A at 16. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege, as it contains draft questions and answers, and as Ms. Rice seeks review and comment from Administration officials on the proposed policy statements. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that they have shown that Administration deliberations regarding the Supreme Court's consideration of FDA regulation are relevant to this matter.

48. PRA181-0925-0926 [CD 312]

"This document is included within Challenged Document #311." Reed Decl. at 30; Gonzales Decl. Ex. A at 16. Consistent with the recommendation for Challenged Document 311, the Special Master recommends that the Court sustain the deliberative process privilege claim for Challenged Document 312, notwithstanding Joint Defendants' claimed need.

49. PRA181-0930-0931 [CD 314]

"This document is a March 23, 2000 email from Eric P. Liu to Heather Hurlburt, with copies to Anna Richter, Broderick Johnson, J. Eric Gould, and Bruce N. Reed, returning to Ms. Hurlburt, with his edits, Ms. Hurlburt's draft of President Clinton's upcoming March 24, 2000 radio address concerning combating youth smoking and seeking legislative support for FDA regulation of tobacco." Reed Decl. at 30; Gonzales Decl. Ex. A at 16. Plaintiff claims the deliberative process and presidential communications privileges.

This document contains a draft of the same presidential speech contained within Challenged Documents 188 and 223. Consistent with those earlier recommendations, the Special Master recommends that the Court sustain the presidential communications privilege claim for Challenged Document 314, notwithstanding Joint Defendants' asserted need.

50. PRA181-0979-0980 [CD 327]

This document consists of two January 25, 2000 emails concerning the tobacco language in the President's upcoming State of the Union address. The first is from Anna Richter to Cynthia A. Rice, with copies to Eugenia Chough, Andrea Kane, and J. Eric Gould, forwarding the draft language about protecting children from tobacco (both in the text of the email and by separate paper), and seeking review and comment; in the second email, Ms. Rice provides edits to the draft to Ms. Richter, with copies to Ms. Kane, Mr. Gould, and Ms. Chough. Reed Decl. at 31; Gonzales Decl. Ex. A at 16. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for the President's draft State of the Union speech, and the editorial recommendations provided by his advisors. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's speech, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

51. PRA181-0998-0999 [CD 330]

This document consists of "three emails discussing the anticipated Supreme Court decision on the FDA tobacco rule: (a) February 3, 2000, Eric P. Liu to Cynthia A. Rice, with copies to Andrea Kane, J. Eric Gould, Eugenia Chough, and Anna Richter, seeking guidance as to what the Administration should do in preparation for the anticipated decision; (b) February 4, 2000, Ms. Rice to Mr. Liu, with copies to the other addressees, providing her suggestions as to how to prepare, including suggestions as to who should be involved, and seeking further guidance as to how to proceed; and (c) February 8, 2000, Mr. Liu to Ms. Rice, with copies to the other addressees, responding briefly to (b)." Reed Decl. at 31; Gonzales Decl. Ex. A at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege. Here, the document contains discussions among presidential advisors of how to respond to any Supreme Court decision regarding FDA regulation of tobacco; the communications were for the purpose of formulating advice for the President as to what the Administration's position should be. The Special Master does not believe that Joint Defendants have shown need for this document as they have not demonstrated the relevancy of deliberations regarding a response to the Supreme Court's decision in the FDA regulation case to this action.

52. PRA181-1188-1188 [CD 356]

"This document is an April 13, 2000 email from J. Eric Gould to Eric P. Hothem and Bruce N. Reed, with copies to Anna Richter, Andrea Kane, and Cathy Mays, reporting on/analyzing discussions with Sen. Kennedy's staff about how to proceed with respect to Sen. Frist's proposed FDA tobacco regulation legislation." Reed Decl. at 31; Gonzales Decl. Ex. A at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege for this document as Plaintiff has not shown how this document contains information solicited or received by high-level presidential advisors for the purpose of formulating advice to be given the President. The document does qualify for the deliberative process privilege as it contains discussions of an EOP employee's " REDACTED REDACTED REDACTED. It therefore is deliberative and predecisional in nature.

Joint Defendants have argued that discussions regarding the adequacy of legislation to reduce youth smoking are relevant to their affirmative equitable defenses. See Mot. App. B at 3. As these defenses have since been dismissed from this case, the Special Master does not believe that such discussions are sufficiently relevant to warrant overcoming Plaintiff's privilege interest.

53. PRA181-1199-1201 [CD 358]

"This document is four March 21, 2000 emails (none of them substantive) discussing and transmitting a draft `Statement [by the President] on Supreme Court FDA/Tobacco Decision March 21, 2000.' The draft statement discusses the Supreme Court decision and calls for Congressional passage of legislation giving FDA authority over tobacco." Reed Decl. at 32; Gonzales Decl. Ex. A at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 1199-1200, which contain a hex dump and emails with non-deliberative communications. The Special Master recommends that the Court sustain the presidential communications privilege claim for page 1201, as it contains the draft presidential statement. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statement, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

54. PRA181-1208-1208 [CD 360]

"This document is a March 22, 2000 email from Jeffrey A. Shesol to Heather Hurlburt and Eric P. Liu transmitting a draft edit/suggestion for the President's radio address concerning cigarette companies marketing to children." Reed Decl. at 32; Gonzales Decl. Ex. A at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this document, as it proposes a statement for the President's radio address. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statement, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

55. PRA181-1210-1214 [CD 361]

"This document is three emails discussing attached March 2 and March 6, 2000 draft statements by the President on the anticipated Supreme Court FDA/Tobacco decision: (a) March 2, 2000, J. Eric Gould to Cynthia A. Rice, transmitting the draft statement; (b) March 3, 2000, Ms. Rice to Mr. Gould, requesting edits and changes to the draft statement (including proposed language); and (c) March 6, 2000, Mr. Gould to Ms. Rice, responding very briefly to (b). Both of the draft statements include two options for the text of the statement, depending upon how the Supreme Court rules." Reed Decl. at 32; Gonzales Decl. Ex. A at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 1211, which contains only a blank email and a hex dump. The Special Master further recommends that the Court sustain the presidential communications privilege claim for page 1210 and 1212-1214, which contain draft versions of statements proposed to be given by the President, and his advisors editorial comments to the drafts. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statements, and they have not established that the draft versions are directly relevant to any issue expected to be central to this litigation.

56. PRA181-1390-1392 [CD 370]

"This document is five brief December 13, 2000 emails among Christina S. Ho, Deanne E. Benos, Leanne A. Shimabukuro, Andrea Kane, and Sarah C. Lucas, discussing an attached draft `Statement of the President' (proposed to be made December 14, 2000) about the upcoming 2000 Monitoring the Future Survey that discusses progress made in the fight against youth drug and tobacco use." Reed Decl. at 32; Gonzales Decl. Ex. A at 17. The first email is from Ms. Ho, transmitting the draft statement and explaining changes she made; the second is from Ms. Benos, commenting on the draft; the third is from Ms. Shimabukuro, asking about the appropriateness of one part of the statement; the fourth is from Ms. Benos, agreeing with Ms. Shimabukuro and suggesting alternative language; and the final is from Ms. Ho, responding to the prior two emails and seeking Ms. Kane's guidance. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for the President's draft statement and the editorial comments made by his high-level advisors to the statement. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statement, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

57. PRA181-1528-1533 [CD 379]

Plaintiff has released pages 1530-1532, and claims the deliberative process and presidential communications privileges for pages 1528-1529 and 1533, which "is a May 17, 2000 email string discussing preparation of a draft statement by the President concerning the need to protect children from the dangers of tobacco and the draft statement." Reed Decl. at 33; Gonzales Decl. Ex. A at 18. The emails are as follows: "(a) J. Eric Gould to Bruce N. Reed, with copies to Cathy Mays, Anna Richter, Barbara Chow, Jennifer M. McGee, and Andrea Kane, transmitting the draft statement; (b) Mr. Gould to Ms. Richter, asking her to make sure that Mr. Reed is aware of a specific statement in the draft; (c) Ms. Richter to Mr. Gould, asking whether OMB has reviewed and approved the draft; and (d) Mr. Gould to Ms. Richter, responding to (c) (OMB has not yet cleared the draft)." Id.

The Special Master recommends that the Court overrule the privilege claims for page 1529, as it contains only an email distribution list and a hex dump. The Special Master further recommends that the Court sustain the presidential communications privilege for pages 1533, which is a draft statement to be given by the President, and for page 1528, which contains a series of emails with the President's advisors questions and comments regarding the draft statement. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statement, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

58. PRA181-1707-1716 [CD 395]

"This document is a March 23, 1998 email from Patricia Kaeding to Cynthia A. Rice and Cynthia Dailard transmitting a paper entitled `FDA Comments on 3/18 Bill Draft [Tobacco Products Control Act of 1998].'" Reed Decl. at 33; Gonzales Decl. Ex. A at 18. Mr. Reed attests that "[t]he paper presents detailed and specific comments by FDA as to problems that it sees with respect to the proposed legislation, and changes that it recommends be made." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1707, which contains a non-deliberative email, and for page 1708, which is blank. The Special Master does believe that pages 1709-1716 qualify for the privilege as they contain the FDA's comments on the tobacco bill, and suggestions for changes. Joint Defendants have argued that discussions relating to the adequacy of legislation to reduce youth smoking are relevant to their affirmative equitable defenses. See Mot. App. B at 3. As those defenses are no longer part of this case, Joint Defendants have not shown that these discussions are sufficiently relevant to their need to overcome Plaintiff's interest in its privilege.

59. PRA181-2171-2171 [CD 434]

"This document is an August 9, 2000 email from Elliot J. Diringer to Anna Richter, Andrea Kane, and Alexander N. Gertsen transmitting a redraft of the President's tobacco statement concerning a report issued that day by the Surgeon General, calling for Congress to provide FDA with greater authority over tobacco, and calling for the states to use MSA funds to reduce youth smoking." Reed Decl. at 33; Gonzales Decl. Ex. A at 19. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for the President's draft statement. Further, the Special Master believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statement, and they have not established that the draft version is directly relevant to any issue expected to be central to this litigation.

60. PRA181-2245-2246 [CD 448]

This document consists of "five June 26, 2000 emails concerning a draft letter from the President to Philip Morris regarding the company's decision not to advertise in magazines with a certain level of children readership." Reed Decl. at 34; Gonzales Decl. Ex. A at 19. The emails are as follows: "(a) Christopher K. Scully to J. Eric Gould, informing him that the President wants to send a letter and enclosing his draft of the letter for Mr. Gould's review; (b) Mr. Gould to Andrea Kane, forwarding (a) with his recommendation concerning the letter; (c) Ms. Kane to Mr. Gould, responding to (b), including providing her views as to how the matter should be handled; (d) Mr. Gould to Ms. Kane, seeking further guidance as to how to proceed; and (e) Ms. Kane to Mr. Gould, responding to (d)." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for this draft letter, as well as the discussions among the President's advisors regarding the letter. The Special Master does not believe that Joint Defendants have shown need for a draft letter to be sent to Philip Morris, as they have not shown that similar information, such as any final letter sent to Philip Morris, is not available with due diligence from other sources, nor have they shown that the comments of the President's advisors regarding Philip Morris's advertising decision are directly relevant to a central issue in this case.

61. PRA181-2318-2318 [CD 455]

"This document is a May 4, 2000 email from J. Eric Gould to Eric P. Hothem and Bruce N. Reed, with copies to Anna Richter, Andrea Kane, and Cathy Mays, discussing/analyzing conversations with the Senate regarding possible Sen. Frist legislation (relating to the FDA) and discussing Administration strategy in this area." Reed Decl. at 34; Gonzales Decl. Ex. A at 19. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege for this document as Plaintiff has not shown that this information was solicited and received for the purpose of formulating advice for the President.See, e.g., In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). The document does qualify for the deliberative process privilege, as it contains Mr. Gould's opinions on the proposed legislation (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED"), as well as steps to be taken (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED.").

The Special Master does not believe that Joint Defendants have shown need for this document. Here, the discussions address the Frist legislative proposal, to which Joint Defendants have access. Additionally, the discussions contained in this email do not relate to any of Joint Defendants' relevancy arguments.

62. PRA181-2382-2386 [CD 467]

"This document is a May 17, 2000 email from J. Eric Gould to Bruce N. Reed, with copies to Andrea Kane, Jennifer M. McGee, Anna Richter, Barbara Chow, and Cathy Mays, transmitting a draft tobacco statement by the President concerning the need for greater regulation of tobacco advertising and marketing, and draft press guidance concerning the same topic, including FDA enforcement." Reed Decl. at 34; Gonzales Decl. Ex. A at 19. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 2382, which contains a non-deliberative email and hex dump. Pages 2383-2386 are covered by the presidential communications privilege as they contain a draft statement to be made by the President and drafts of the Administration's position regarding FDA authority to regulate tobacco. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statements, and they have not established that the draft versions are directly relevant to any issue expected to be central to this litigation.

63. PRA181-2467-2467 [CD 478]

"This document is a July 20, 1995 email from Christopher C. Jennings to Marilyn Yager, with copies to Christopher D. Cerf, Erskine Bowles, and Harold Ickes, providing his opinion as to who at FDA should be involved in planning a phone call by an outside organization with the President. Mr. Jennings also provides suggestions for what the President should say in this telephone conversation." Reed Decl. at 35; Gonzales Decl. Ex. A at 19-20. Plaintiff claims the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this document, which contains discussions of whether the President should REDACTED REDACTED REDACTED REDACTED. Therefore, it contains information solicited and received for the purpose of formulating advice to be given the President. Joint Defendants have not established need to overcome the presumptively privileged status as they have not demonstrated that such discussions are directly relevant to a central issue in this litigation.

64. PRA181-2468-2469 [CD 479]

"This document is a July 14, 1995 email from John O. Sutton to Jennifer M. O'Connor forwarding a memorandum of the same date from Leon Panetta and Harold Ickes to the President and Vice President transmitting and discussing another memorandum that discusses substantive policy options and strategy options for achieving a meaningful reduction in youth smoking." Reed Decl. at 35; Gonzales Decl. Ex. A at 20. Mr. Reed explains that the "memorandum summarizes briefly the policy options and strategy options and offers certain ideas that the President and Vice President should keep in mind when considering the options presented in the memorandum. The authors also offer their views as to how this matter might affect upcoming elections." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege for this document, which contains a memorandum advising the President and Vice President of possible tobacco policy options for reducing youth smoking. The Special Master does not believe that Joint Defendants have shown sufficient need for this document. While the memorandum contains discussions regarding options to reduce youth smoking, documents covered by the presidential communications privilege are presumptively privileged and Joint Defendants must show that the discussions are directly relevant to a central issue in this litigation. The Special Master does not believe that Joint Defendants have met this high standard.

65. PRA181-2470-2472 [CD 480]

"This document is an August 9, 1995 email from Danielle F. Rose to Kathy McKiernan and April Mellody transmitting a briefing paper for the President's tobacco discussion with children on August 10, 1995." Reed Decl. at 35; Gonzales Decl. Ex. A at 20. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this document, as it contains a briefing paper prepared for the President regarding an upcoming meeting and press conference. The Special Master does not believe that Joint Defendants have shown that preparatory materials for a meeting with children and health policy advocates are directly relevant to a central issue in this case.

66. PRA181-2481-2482 [CD 483]

"This document is a March 22, 1996 email from Jennifer M. O'Connor to Christopher D. Cerf forwarding a draft briefing memorandum for the President concerning his upcoming speech to attorneys general on the issue of tobacco use by kids. The memorandum includes background information concerning the proposed FDA rule, the Synar regulation, and preemption (in the context of tobacco regulation)." Reed Decl. at 35; Gonzales Decl. Ex. A at 20. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for the draft briefing paper, as it contains information gathered for the purpose of advising the President. While it contains a discussion of topics relevant to this case, the Special Master is not persuaded that this email contains information that is directly relevant to a central issue in this lawsuit, nor that Joint Defendants have shown that similar information is not available to them with due diligence from other sources.

67. PRA181-2497-2506 [CD 484]

"This document is a July 14, 1995 email from John O. Sutton to Jennifer M. O'Connor forwarding a July 14, 1995 lengthy and detailed memorandum from Leon Panetta and Harold Ickes to the President and Vice President concerning youth access to tobacco/proposed FDA rule." Reed Decl. at 36; Gonzales Decl. Ex. A at 20. Mr. Reed explains that "[t]he purposes of the memorandum are `to identify (a) policy options for addressing this significant public health concern, and (b) possible strategies for achieving the policy objective' recommended in the memorandum. The memorandum includes a detailed summary of the FDA's proposed rule and discusses the possible ramifications of the rule." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this document, as it contains detailed information provided to the President and Vice President by high-level presidential advisors for the purpose of creating Administration policy. Moreover, while it contains a discussion of topics relevant to this case, the Special Master is not persuaded that this email contains information that is directly relevant to a central issue in this lawsuit, nor that Joint Defendants have shown that similar information is not available to them with due diligence from other sources.

68. PRA181-2507-2509 [CD 485]

This document is a duplicate of Challenged Document #480, except for the person forwarding the email. Reed Decl. at 36; Gonzales Decl. Ex. A at 20. Consistent with the recommendation for Challenged Document 480, the Special Master recommends that the Court sustain the presidential communications privilege claim, notwithstanding Joint Defendants' asserted need.

69. PRA181-2515-2517 [CD 487]

"This document is a January 23, 1996 email from Cookab Hashemi to Julia R. Green forwarding three questions the President will be asked relating to Kentucky, one of which deals with tobacco (how will the Administration proceed with respect to regulating tobacco sales to minors if the proposed FDA tobacco rule is adopted?)." Reed Decl. at 36; Gonzales Decl. Ex. A at 21. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim as this document contains information solicited and received for the purpose of advising the President regarding questions that he will be asked regarding certain policy issues. The Special Master does not believe that Joint Defendants have shown that the document contains discussions regarding issues that are expected to be central to this litigation; particularly as the majority of the document is non-responsive.

70. PRA181-2518-2518 [CD 488]

"This document is a March 20, 1996 email from Elizabeth E. Drye to Carol Rasco forwarding an email of the same date from Ms. Drye to Jonathan M. Prince, with copies to Christopher D. Cerf, Jennifer M. O'Connor, and Michael Waldman, providing comments on and proposed edits to the President's upcoming remarks about children and tobacco." Reed Decl. at 36-37; Gonzales Decl. Ex. A at 21. Plaintiff claims the deliberative process and presidential communications privilege.

The Special Master recommends that the Court sustain the presidential communications privilege claim; the email contains a presidential adviser's editorial suggestions to a statement to be made by the President. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown that similar information is not available with due diligence from other sources, such as the final, public version of the President's statements, and they have not established that the draft versions are directly relevant to any issue expected to be central to this litigation.

71. PRA181-2519-2520 [CD 489]

"This document is a September 20, 1995 email from Jennifer M. O'Connor to Daniel Tate forwarding and commenting on possible changes to an HHS draft of remarks to be made by the President concerning the Administration's childhood tobacco initiative." Reed Decl. at 37; Gonzales Decl. Ex. A at 21. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this document. Here, the document contains a draft presidential statement, along with Ms. O'Connor's suggestions for changes to the draft. It is therefore presumptively privileged, and the Special Master does not believe that Joint Defendants can show need for this document, as they have not shown that prior drafts and the comments of the President's advisers are directly relevant to central issues in this case, nor have they shown that similar information, such as the final remarks the President makes, is not available to them with due diligence from other sources.

72. PRA181-2521-2523 [CD 490]

"This document is a July 12, 1995 email from Jennifer M. O'Connor to John O. Sutton providing (a) a discussion of legal issues relating to possible implementation of the proposed FDA tobacco rule; and (b) a summary of matters to be discussed at upcoming meetings concerning the proposed FDA rule, including options for policy and strategy with respect to combating youth smoking." Reed Decl. at 37; Gonzales Decl. Ex. A at 21. Plaintiff claims the deliberative process, attorney-client and presidential communications privileges.

The Special Master recommends that the Court overrule the attorney-client privilege. While the email contains some discussion regarding the First Amendment, takings, and preemption, Plaintiff has not shown how the document contains or reveals confidential client communications made to an attorney for the purpose of obtaining legal advice, especially as Plaintiff has not indicated whether either Ms. O'Connor or Mr. Sutton are attorneys.

The Special Master does believe that the presidential communications privilege applies, as Ms. O'Connor is a Special Assistant to the President, and the information contained in the email analyzes proposed legislation for the purpose of formulating Administration policy with respect to that legislation. The Special Master does not believe that Joint Defendants have shown that an analysis of the FDA's proposed rule is directly relevant to central claims in this litigation to justify overcoming the presumptively privileged status afforded communications falling within the presidential communications privilege.

73. PRA181-2525-2525 [CD 492]

"This document is July 21, 1995 email from Seth E. Masket to Christopher C. Jennings forwarding and discussing briefly a proposed letter to be sent by President Clinton in response to incoming correspondence relating to the FDA's proposed tobacco rule." Reed Decl. at 37; Gonzales Decl. Ex. A at 21. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. Here, the document contains a draft letter to be sent by the President, along with a presidential adviser's comments to the draft letter. The Special Master does not believe that Joint Defendants have shown need for this document, as they have access to any final letters sent by the President, and because they have not shown that draft versions, and the comments of an advisor pertaining to the draft version, are directly relevant to central issues in this case.

E. Documents Relating to Application of the Synar Amendment

Mr. Locke explains that the Synar Amendment and its implementing regulations "require States to have laws in effect banning tobacco sales to minors, accompanied by enforcement regulations, as a condition for receiving the full amount of funding under the Substance Abuse Prevention and Treatment block grant." Locke Decl. at 46. Documents in this section relate to Executive Branch considerations of enforcement of and possible changes to the Synar Amendment. Id. "With respect to enforcement, the White House, OMB, and HHS discussed whether HHS, through the Substance Abuse and Mental Health Services Administration (SAMHSA), a component within HHS, should notify one or more states' governors that their states were not in compliance with the Synar Amendment and the implementing regulations and that, as a result, the states risked the loss of certain Federal funds." Id. "With respect to possible changes to the law, the White House, OMB, and HHS considered the effect of possible changes to the Synar Amendment and whether to propose changes to the law." Id. at 47.

Joint Defendants assert that "these documents contain discussions and communications that demonstrate that the Government was not serious about underage smoking, tolerated or ignored significant problems with efforts to prevent youth smoking at both the federal and state level, and ultimately endorsed amending Synar to allow noncomplying states to nevertheless receive block grant funding." Mot. App. B at 4. They "believe that these documents will support [Joint Defendants'] contention that the Government's efforts to curb youth smoking were pro forma at best and that the Government undermined the beneficent purposes of the Synar Amendment by allowing non-compliant states to receive block grant funding."Id. They assert that discussions "offering insight into why the Government permitted non-complying states to receive their federal funds — in obvious derogation of Synar and its goal of reducing youth smoking — are relevant to the Government's claims and are essential to" the affirmative equitable defenses. Id. at 5.

1. PRA181-0396-0398 [CD 234]

This document comprises two emails dated April 28, 2000. The first is "from Patrick Aylward to J. Eric Gould, Eugenia Chough, and Matthew Bennett, with a copy to Thomas Reilly, providing the OMB Health Division's comments on changes proposed by HHS in the Synar penalty structure." Locke Decl. at 47. The second is from Ms. Chough to Mr. Aylward, with copies to Mr. Gould, Mr. Bennett, and Mr. Reilly, responding to the first and "suggesting a time to further discuss the comments." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document contains proposed edits to the HHS proposal. Additionally, the document indicates that HHS has not reached a final position on some of the discussions at issue: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants have shown need for this document. While "issues pertaining to enforcement of youth smoking regulations are relevant to the issue of incidence of youth smoking," see Report and Recommendation #164 at 200, this particular document highlights the sole views of one HHS employee, as well as OMB's Health Division's views on a particular position. The Special Master believes that the potential for future chill is significant, particularly as Joint Defendants will have access to similar information from the other sources that the Special Master has recommended be released.

2. PRA181-0430-0445 [CD 237]

"This document consist of three emails discussing the Synar Amendment and proposed letters to be sent to certain states, and attaches draft letters to the states and a discussion paper `Proposed Changes to the Synar Program Requirements.'" Reed Decl. at 38; Gonzales Decl. Ex. A at 22. The emails are as follows:

(a) January 18, 2000, J. Eric Gould to Richard Turman, with copies to Eugenia Chough, Cynthia A. Rice, Barry T. Clendenin, Partick Aylward, Frank Seidl III, and Victoria A. Wachino transmitting and discussing the status of the attached proposed letters offered by HHS, which address state compliance with the Synar Amendment; (b) January 19, 2000, Ms. Chough to Ms. Rice, Mr. Gould, Mr. Turman, Mr. Clendenin, Mr. Aylward, Mr. Seidl, and Ms. Wachino, forwarding the email described above and providing her suggestions on further consideration by the Administration regarding the proposed changes offered from HHS and setting up meetings for those involved to further discuss this issue; and (c) January 19, 2000, from Mr. Gould to Sarah A. Bianchi and Matthew Bennett, with a copy to Ms. Chough, forwarding the emails described above and providing his characterization and impression of the HHS-proposed letters regarding the Synar Amendment, including opinions on the effectiveness of the two proposed letters, as well as transmitting the discussion policy paper from SAMHSA referenced above addressing the proposed changes to the Synar program requirements, including his impression of the purpose of the memo and proposed changes as well as a discussion of possible options for the Administration to consider and his recommendations.

Id. at 38-39.

In Report and Recommendation # 164, the Special Master recommended that draft letters regarding states' compliance with Synar, as well as employee discussions concerning those letters, were protected by the deliberative process privilege, and that Joint Defendants' need did not outweigh Plaintiff's privilege interest. See RR #164 at 200. The Special Master also recommended that the Court sustain the privilege claim for a draft discussion paper proposing changes to Synar, but that the Court order such information released to Joint Defendants as their need outweighed Plaintiff's privilege claim. Id. Consistent with this earlier recommendation, the Special Master recommends that the Court sustain the privilege claim for this document, but that pages 0439-0445, which contain the discussion paper proposing changes to Synar, be released to Joint Defendants.

3. PRA181-1308-1314 [CD 365]

This document consists of four April 10, 2000 emails "discussing an attached `working paper' from HHS entitled `Options for Revising Synar Program.'" Reed Decl. at 39; Gonzales Decl. Ex. A at 22. The emails are as follows: "(a) Ripley Forbes to Eugenia Chough and J. Eric Gould, transmitting the draft working paper and discussing HHS's views as to how to proceed; (b) Ms. Chough to Matthew Bennett and Sarah A. Bianchi, with a copy to Mr. Gould, briefly commenting on the HHS proposal and requesting a meeting; (c) Mr. Bennett to Ms. Chough and Ms. Bianchi, with a copy to Mr. Gould, discussing his availability for a meeting; and (d) Ms. Chough to Mr. Bennett, with copies to Mr. Gould and Ms. Bianchi, responding to (c)." Id. "The attached HHS draft paper presents options for changes to the Synar program, including recommendations." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1308-1309, which contain non-deliberative emails relating to scheduling. The Special Master further recommends that the Court sustain the privilege claim for pages 1310-1314, which is the draft working paper proposing changes to Synar, but that, consistent with prior recommendations addressing deliberations relating to proposed changes to Synar, the Court order Plaintiff to produce this document to Joint Defendants as it is relevant, not available from other sources, and unlikely to create a future chilling effect on EOP discussions.

4. PRA181-2276-2280 [CD 453]

This document consists of two emails discussing proposed Administration/HHS action concerning the Synar Amendment. The first is dated July 14, 2000, and is "from Kevin Burke to Patrick Aylward and J. Eric Gould, with copies to a group of HHS, SAMHSA, and other personnel, forwarding a `for discussion purposes only' `Proposed Revision to Synar Penalty Structure' paper that sets forth HHS's proposed change, including two options, and attaches HHS responses to OMB questions and comments regarding the proposed Synar penalty restructuring." Locke Decl. at 47. The second is dated June 15, 2000, and is from Mr. Aylward to Matthew Bennett, Mr. Gould, and Thomas Reilly, forwarding the first and "discussing a plan of action with respect to proceeding on this issue." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2276, which contains non-deliberative emails. The Special Master believes that pages 2277-2280, which address proposed changes to Synar qualify for the privilege, as they are deliberative and predecisional in nature. However, Joint Defendants' need for this relevant information outweighs Plaintiff's privilege claim, particularly as the information is not available from other sources, and as the discussion papers are not particularly personal in nature and therefore unlikely to result in future chill should they be disclosed.

5. PRA181-2324-2325 [CD 456]

This document is an August 23, 2000 email from Andrea Kane to Christina Ho forwarding an April 28, 2000 email from Eugenia Chough to Ms. Kane, which in turns forwards an April 28, 2000 email from Patrick Aylward to J. Eric Gould, Ms. Chough, and Matthew Bennett, with a copy to Thomas Reilly, that provides OMB Health Division comments on HHS' proposed legislative change to the Synar Amendment penalty structure and relates ongoing discussions with HHS about how to draft one portion of the proposed revision." Locke Decl. at 47-48. Plaintiff claims the deliberative process privilege.

This document essentially is a duplicate of Challenged Document 234. Consistent with the recommendations for Challenged Document 234, the Special Master recommends that the Court sustain the privilege claim, notwithstanding Joint Defendants' asserted need.

6. PRA181-2338-2342 [CD 460]

"This document is a duplicate, in a slightly different format, of the email from Kevin Burke, with attachments, described in Challenged Document #453." Locke Decl. at 48. The Special Master recommends that the Court overrule the privilege claim for page 2338, which contains a non-deliberative email. Consistent with the recommendation for Challenged Document 453, the Special Master recommends that the Court sustain the privilege claim for pages 2339-2342, but order Plaintiff to produce these pages to Joint Defendants as their need for this information outweighs Plaintiff's interest in its privilege.

F. Documents Relating to International Tobacco Issues

Mr. Reed explains that the documents in this group relate to President Clinton's September 17, 1997 remarks concerning the June 1997 proposed settlement between the states and the tobacco companies, in which he "included as part of his five key elements that must be at the heart of any national tobacco legislation `the strengthening of international efforts to control tobacco.'" Reed Decl. at 39. Mr. Reed further explains that "the White House (including particularly the DPC), OMB, the United States Trade Representative (`USTR'), HHS, Department of State, Treasury, Department of Justice, and sometimes other Executive Branch agencies worked together to consider possible legislation, regulations, or programs to advance the President's directive that the United States become involved in strengthening international efforts to control tobacco," including "participation in the World Health Organization's Framework Convention on Tobacco Control (`FCTC')."Id.

Mr. Reed explains that "the purpose of the review and analysis of the proposed settlements was (1) to assist the White House, OMB, and the Executive Branch agencies and offices in becoming familiar with and understanding the work being done with respect to strengthening international efforts to control tobacco, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch should take with respect to the issue and any proposed legislation, regulations, or programs, including international treaties." Id. at 40.

Essentially, there are two groups of documents "generated for the following purposes: (i) determining how best to further the President's directive that the United States participate in international efforts to control tobacco while at the same time determining to what extent, and in what manner, to become involved in responding to existing and proposed laws and regulations in other countries that affect or might affect the ability of United States tobacco companies to compete overseas (Challenged Documents ##140, 274, 276, 279, 282, 306, 368, 378, 380, 383, 384, 388, 389, 394, 435, 436, 442, 449, 459, 471, 472); and (ii) developing U.S. positions to be taken at negotiations in Geneva on the proposed Framework Convention on Tobacco Control (Challenged Documents ##213, 260, 265, 280, 281, 285, 286, 295, 324, 326, 331, 335, 343, 345, 372, 374, 377, 381, 391, 494, 495, 498, 499)." Id.

Joint Defendants assert that their need for the documents categorized in this group outweighs Plaintiff's privilege interest. They "believe that these documents contain discussions and communications concerning the Government's long-standing support of domestic tobacco farmers and attempts by the Government to open and expand foreign markets for domestic tobacco products," and that "[a]s a consequence of its deliberate actions, the Government has contributed to increased rates of smoking initiation and prevalence." Mot. App. B at 17. They further assert their belief that the documents in this group "contain discussions and communications balancing the economic interests of the Government in promoting the growth of domestic tobacco and the sale of tobacco products to foreign markets, against the public health concerns associated with the use of tobacco products," and therefore relate to Joint Defendants' affirmative equitable defenses. Id. at 17-18.

Joint Defendants contend that these documents "are relevant insofar as they acknowledge that the Federal government has deliberately and consciously struck this balance with full awareness and knowledge of the risks associated with smoking, and with full awareness, knowledge, and in some instanced support, of Joint Defendants' allegedly fraudulent conduct." Id. at 18. Moreover, "such discussions offer insight into the equity of the Government's requested injunctive relief in light of the Government's participation in, and profiting of, Joint Defendants' alleged RICO conspiracy, as well as what the Government believed was appropriately considered in determining whether to promote and sponsor the growth of domestic tobacco and the sale of tobacco products in foreign markets." Id.

1. PRA172-4793-4794 [CD 140] "This document is two copies of a May 22, 2000 draft edited paper entitled `Proposal to Mitigate the Potential Adverse Impact of PNTR on Tobacco Use in China.' The goal of this proposal is to increase international tobacco control efforts." Reed Decl. at 40; Gonzales Decl. Ex. A at 23. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process privilege claim, as this document contains a draft proposal of international tobacco control efforts. As a draft, it reflects the opinion of the agency employees, rather than the policy of the Administration. Coastal States, 617 F.2d at 866. The Special Master does not believe that this document relates to Joint Defendants' need arguments, which focus on their belief that the government took action to promote tobacco use abroad. See Mot. App. B at 17-18. Instead, this document seeks to mitigate public health concerns arising from establishing Permanent Normal Trade Relations with China.

2. PRA181-0128-0139 [CD 213]

Plaintiff has released pages 0128-0135 and claims the deliberative process privilege for pages 0136-0139, "a Health and Human Services draft of an Executive Branch internal memorandum (including talking points) setting forth background information for the United States FCTC negotiating team and the positions that the team should take at the FCTC negotiations." Reed Decl. at 40; Gonzales Decl. Ex. A at 23.

The Special Master recommends that the Court sustain the privilege claim for pages 0136-0139. In the email released by Plaintiff, Mr. Valdez states that this document is "Version #2," and that he "hope[s] [he] incorporated everyone's comments and concerns," and that "[i]f someone has a burning issue, please let [him] know . . ." Therefore, the document is not yet final. The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to the government's attempts to encourage tobacco sales abroad, and as they have access to the final U.S. position on the WHO Framework Convention on Tobacco Control.

3. PRA181-0529-0529 [CD 260]

"This document consists of two emails discussing a meeting between Executive Branch FCTC negotiators and Gro Harlem Brundtland of the World Health Organization regarding tobacco advertising." Reed Decl. at 41; Gonzales Decl. Ex. A at 23. The first is dated July 5, 2000, and is from "Thomas Novotny to John Sandage, discussing a meeting that HHS Secretary Shalala had with Dr. Brundtland, Sec. Shalala's views on how Dr. Brundtland responded to the United States' concerns, and requesting the further opinion/advice from John Sandage on behalf of the State Department with respect to how to proceed." The second is dated July 7, 2000, and is from "Mr. Sandage to Dr. Novotny, with copies to J. Eric Gould, Ripley Forbes, and Ann Blackwood, with his views on the status of this issue and the effect of further attempts to restrict tobacco advertising." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these emails, which discuss a proposal that would result in stricter limitations on tobacco advertising. The emails contain the thoughts and opinions of the agency officials and employees involved in the discussion. The Special Master does not believe that Joint Defendants have shown need for this document; while the issue of tobacco advertising is tangentially related to their need arguments, the discussions here are candid, personal, and very preliminary. Release of this document could chill future open and frank agency discussions.

4. PRA181-0541-0541 [CD 265]

"This document is a July 26, 2000 email from J. Eric Gould to Kenneth W. Bernard addressing his (Mr. Gould's) departure from the White House and providing his opinion on how the Administration can continue to address certain international/FCTC tobacco issues within his expertise, including his opinions on what issues still need to be addressed at that point in time." Reed Decl. at 41; Gonzales Decl. Ex. A at 23. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for Mr. Gould's email, which contains his subjective opinions and ideas for the next steps in addressing the WHO Framework Convention on Tobacco Control. It is deliberative and predecisional in nature. The Special Master further believes that Joint Defendants' need does not outweigh Plaintiff's privilege claim. First, the discussions are not sufficiently relevant to Joint Defendants' need arguments to justify overcoming Plaintiff's privilege interests. Second, the email speaks to the process by which the Administration formulates policy, which is a central concern of the deliberative process privilege. Petroleum Information, 976 F.2d at 1435.

5. PRA181-0611-0617 [CD 274]

"This document consists of three emails transmitting and discussing an attached briefing memo from Al Larson and William Corbett to Gene Sperling on tobacco issues arising under a 1998 U.S./Korea trade agreement and upcoming FTA negotiations with Singapore and Chile." Reed Decl. at 41; Gonzales Decl. Ex. A at 23. The emails are: "(a) December 7, 2000, Christina S. Ho to Bruce N. Reed, Barbara Chow, Andrea Kane, with copies to Cathy Mays, Jennifer M. McGee, and Julie T. Bosland attaching the briefing memo and explaining the internal strategy and use for this memo; (b) December 7, 2000, Ms. Mays to Anna Richter, forwarding (a) and the attachment; and (c) December 7, 2000, Ms. Richter to Karin Kullman, forwarding (a) and (b)." Id. Mr. Reed notes that "[t]he attached briefing memo was intended to be for internal use only." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0612, which contains only a hex dump. The Special Master further recommends that the Court sustain the presidential communications privilege for the email at 0611, and the briefing papers contained at 0613-0617, which contain information provided by Administration employees to the Director of the National Economic Council, a high-level presidential advisor, for the purpose of developing Administration policy. For example, the memorandum proposes that, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants have shown need to overcome the presumptively privileged status granted communications protected by the presidential communications privilege, as they have not shown that the documents here contain information that is directly relevant to a central issue in this litigation.

6. PRA181-0630-0632 [CD 276]

This document consists of "two November 27, 2000 emails discussing an attached draft memorandum from William Corbett to Al Larson providing an `Update on Korea Tobacco Issue.'" Reed Decl. at 42; Gonzales Decl. Ex. A at 23-24. The first is from Mr. Corbett to Julie T. Bosland and Christina S. Ho, requesting their review of and comment on the attached draft memorandum; and the second is from Ms. Bosland to Mr. Corbett, with a copy to Ms. Ho, commenting generally on the draft and suggesting one change to the memorandum. Id. Mr. Reed explains that "[t]he attached memorandum provides Mr. Larson with an update of developments on this matter since November 8, 2000, including with reference to the six specific action items discussed at the November 8 meeting." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege. "The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."In re Sealed Case, 121 F.3d at 752. Here, the draft memorandum provides information to be presented to the Undersecretary of the Office of the United States Trade Representative, but there is no indication that it is to formulate advice to be given the President. The Special Master does believe that the deliberative process privilege applies as the document provides information regarding ongoing research into the Korea tobacco issue, and proposes a possible course of action: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master does not believe that Joint Defendants have shown need as this document is not relevant to their asserted need for deliberations discussing the encouragement of foreign markets for domestic tobacco products notwithstanding public health concerns.

7. PRA181-0657-0658 [CD 279]

This document consists of "three November 9, 2000 emails among William Corbett, Christina S. Ho, and Julie T. Bosland discussing the status of the Korea tobacco issue: (a) Mr. Corbett, asking Ms. Ho and Ms. Bosland to review his summary of the six agreed action items from the November 6, 2000 Executive Branch meeting to discuss this issue before he forwards it to HHS for its review; (b) Ms. Ho, providing a suggestion for an addition/amendment to the list; and (c) Ms. Bosland, requesting a change in one paragraph of the proposed summary list." Reed Decl. at 42; Gonzales Decl. Ex. A at 24. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it contains the suggestions and comments of Administration employees to Mr. Corbett's draft, such as: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." It therefore reflects the give and take of the EOP's deliberative process. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that the discussion here is sufficiently relevant to those assertions to justify overcoming Plaintiff's interest in its privilege.

8. PRA181-0700-0701 [CD 280]

"This document consists of three emails discussing a request for a meeting by the Campaign for Tobacco Free Kids." Reed Decl. at 42; Gonzales Decl. Ex. A at 24. They are as follows: "(a) July 13, 2000 from John B. Sandage to Thomas Novotny addressing the requested meeting, including his availability and his opinion on whether his participation is substantively necessary; (b) July 13, 2000, Dr. Novotny to Mr. Sandage, Ripley Forbes, and J. Eric Gould, with a copy to Ann Blackwood, replying to (a), including providing his opinions on what issues should be discussed during this meeting and the extent to which these issues should be discussed, and addressing whether Sandage's attendance during this meeting is necessary; and (c) July 13, 2000, Mr. Gould to Suzanne G. Walters and Martha J. Johnstone, forwarding the earlier emails." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege. The emails primarily address scheduling issues with respect to attending a meeting, and refer to policy decisions already made (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."). Moreover, it is not deliberative as it does not weigh the pros and cons of one viewpoint or another.

9. PRA181-0711-0714 [CD 281]

"This document is two emails discussing upcoming FCTC negotiations and preparations therefor: (a) Christina S. Ho to the Executive Branch FCTC working group, introducing herself and soliciting guidance as to issues to be discussed at upcoming Executive Branch meetings and who should attend those meetings; and (b) John Sandage to Ms. Ho and the other addressees of (a), responding to (a) and offering his views and opinions as to the draft guidance for the U.S. FCTC negotiators that is to be discussed at the upcoming meeting." Reed Decl. at 43; Gonzales Decl. Ex. A at 24. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0711, which contains only an email distribution list. The Special Master further recommends that the Court sustain the privilege claim for page 0712-0714, which contains a request for policy guidance from Ms. Ho, and Mr. Sandage's detailed response to that request: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." As such, it reflects the give and take of EOP employees in developing Administration policy.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's interest. First, it does not relate to their need arguments as it does not address the government's encouragement of tobacco use abroad. See Mot. App. B at 17-18. Second, it is candid in nature, and very preliminary; hence there is a danger of future chill.

10. PRA181-0718-0720 [CD 282]

This document consists of an email string discussing proposed Korea tobacco legislation. The emails are as follows: "(a) November 21, 2000, Linda Bailey to Julie T. Bosland, Ripley Forbes, Thomas Novotny, Joy Epstein, and Christina S. Ho, providing a brief summary/analysis of a portion of the proposed legislation, her opinions of the legislation, and requesting certain further information to assist in further analysis of the legislation with respect to how the Administration should react; (b) November 21, 2000, Ms. Ho to William Corbett, with a copy to Ms. Bosland, forwarding (a) and requesting assistance in obtaining answers to Ms. Bailey's questions; (c) Ms. Bosland to Jonathan Mudge, with a copy to Ms. Ho, forwarding (a) and (b) and requesting assistance in obtaining the answers; (d) Mr. Mudge to Ms. Bosland, responding to (c); and (e) Ms. Bosland to Mr. Mudge, responding to (d)." Reed Decl. at 43; Gonzales Decl. Ex. A at 24. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0718, which contains non-deliberative email correspondence. Pages 0719-0720 do qualify for the privilege as they contain questions and comments on proposed Korean legislation on tobacco, for example: "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED" The Special Master does not believe that Joint Defendants have shown need for the Administration's questions and comments on the legislative proposal of another nation, particularly as the discussions do not relate to the encouragement of domestic tobacco use abroad. See Mot. App. B at 17-18.

11. PRA181-0754-0759 [CD 285]

"This document is an October 6, 2000 email from Karl Ehlers to Joy Epstein, with copies to Christina S. Ho and Julie T. Bosland, transmitting and discussing briefly talking points and background materials to be used in the upcoming FCTC negotiations. Attached to this email are: (a) October 6, 2000 memorandum from Mr. Ehlers to Ms. Epstein listing the materials being provided; (b) `U.S. Trade Policy on Tobacco Products' talking points for use in the upcoming negotiations; and (c) `Health Issues in the GATT/WHO' talking points, also for use in the upcoming negotiations. Reed Decl. at 43; Gonzales Decl. Ex. A at 24-25. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document. Page 0754 contains a non-deliberative email. Page 0755 is a memorandum listing its attachments for the purpose of preparing for the FCTC negotiations. The remainder of the document consists of the talking points described by Mr. Reed. All of these documents reflect the Administration's position on the issues discussed, and are not pre-decisional in nature.

12. PRA181-0766-0767 [CD 286]

This document contains "three emails discussing how the Administration should respond to certain tobacco-related requests from Rep. Waxman." Reed Decl. at 44; Gonzales Decl. Ex. A at 25. The first is dated May 20, 2000, and is from "Lisa M. Kountoupes to Jeanne Lambrew, J. Eric Gould, Emily Beizer, and M. Guest, Department of State, with a copy to Charles M. Brain, very briefly listing the four requests (concerning China and tobacco, HHS role at FCTC negotiations, international tobaccorelated trade negotiations, and tobacco control laws in other countries and youth smoking trends) for Administration action from Rep. Waxman and, in greater detail, preliminarily assessing whether the Administration can accommodate those requests and, if so, how it can do so." Id. The second is dated May 22, 2000, and is from "Mr. Gould to Bruce N. Reed, with copies to Andrea Kane and Cathy Mays, discussing one of the four items — the HHS role in the FCTC negotiations." Id. The third is dated May 22, 2000, and is from Ms. Kane to Jennifer M. McGee and Eugenia Chough, with a copy to Mr. Gould, forwarding the first two emails. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here the correspondence addresses four proposals " REDACTED REDACTED REDACTED ." It is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document; they have asserted need for communications relating to the government's encouragement of tobacco use abroad. See Mot. App. B at 17-18. These discussions instead address ways to reduce tobacco use abroad.

13. PRA181-0806-0845 [CD 295]

"This document is an October 3, 2000 email from Julie T. Bosland to Joanne E. Slaney, Barbara D. Woolley, Mary L. Smith, Thomas L. Freedman, and Christina S. Ho, forwarding and requesting review of and comment on three documents prepared by the Executive Branch FCTC interagency working group to guide the U.S. negotiators at the FCTC: (a) October 2, 2000 memorandum from Barbara Chow to the members of the group transmitting, describing briefly, and seeking review of (b) a four-page `Summary of Key Issues Related to Guidance for Framework Convention on Tobacco Control and Related Protocols' and (c) detailed `Privileged and Deliberative' `Guidance for FCTC Protocols.'" Reed Decl. at 44; Gonzales Decl. Ex. A at 25. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0806, which contains a non-deliberative email. Pages 0807-0845 do qualify for the privilege as they contain draft guidance for FCTC protocols, a summary of the guidance, and a cover memorandum requesting concurrence in the guidance. As drafts, they reflect the proposed position of the Administration as suggested by agency personnel, and not the actual Administration policy. They are therefore deliberative and predecisional.

The Special Master does not believe that Joint Defendants have shown need for this document. First, the documents speak to the reduction of tobacco use abroad and not its encouragement; therefore they are not relevant to Joint Defendants' need arguments. Second, Joint Defendants have access to the final guidance, which is the statement of the Administration's position.

14. PRA181-0908-0915 [CD 306]

This document consists of two February 17, 2000 emails dealing with a Poland tariff classification issue. The first is from "Leslie Simon to Keith Mason, Cynthia A. Rice, John Sandage, Patricia M. Hudak, and Peter Burr, transmitting and requesting action by the DPC Interagency Working Group on Tobacco on an attached February 16, 2000 detailed note concerning a dispute between Philip Morris and Poland; Mr. Simon recommends a particular resolution to the dispute within the Executive Branch as to how to handle this problem; attached to this email is an undated note prepared by Mr. Simon containing his recommendation as to how the matter should be handled, including concerning what to do with respect to language sought to be included in a submission to the World Customs Organization concerning the dispute." Reed Decl. at 44; Gonzales Decl. Ex. A at 25. The second email is from Ms. Rice to Mr. Simon, with copies to Mr. Simon's other addressees, responding in detail to the first email and providing her opinions as to how the matter should be resolved. Id. at 45. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0913-0914, which contain a hex dump and blank page, respectively. The remainder of the document qualifies for the privilege; it contains the subjective opinions of Administration employees regarding Poland's proposed assessment against Philip Morris and proposed courses of action. The Special Master does not believe that Joint Defendants have shown need for documents addressing tariff disputes, and, as the dispute discussed involves one of the Joint Defendants here, the Joint Defendants do have access to similar information from other sources.

15. PRA181-0958-0959 [CD 324]

This document consists of two emails discussing the FCTC. The first is dated January 17, 2000, and is from "Mary Lou Valdez to a large group of Executive Branch personnel transmitting a paper prepared by Thomas Novotny for use in the upcoming negotiations, and seeking comments (the paper is not included in this document)." Reed Decl. at 45; Gonzales Decl. Ex. A at 25-26. The second is dated January 18, 2000, and is from "Mitch Zeller to Ms. Valdez, with copies to Eugenia Chough and Dr. Novotny, offering comments/suggested edits to two provisions in the paper." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document contains editorial suggestions to a draft paper, and is therefore deliberative and predecisional in nature. Joint Defendants argue need for discussions relating to the government's encouragement of tobacco use abroad, see Mot. App. B at 17-18; no such discussions are present in this document.

16. PRA181-0976-0977 [CD 326]

This document contains an email string discussing the FCTC. The emails are as follows: "(a) December 17, 1999, Mary Lou Valdez to unknown addressees (but likely the members of the Executive Branch interagency group involved in the FCTC negotiations), notifying them of upcoming proposed language from the World Health Organization's staff concerning advertising restrictions; (b) (date not known) Ms. Valdez to unknown addressees (again, probably the interagency group involved in the FCTC negotiations), correcting her earlier email and informing the addressees that the World Health Organization seeks proposed language from the United States and offering her views/opinions as to what the response should be to this request; (c) December 30, 1999, Thomas Novotny to Ms. Valdez and Eugenia Chough, suggesting how to handle consideration of the request; (d) January 6, 2000, Ms. Chough to Cynthia A. Rice and J. Eric Gould, forwarding (a)-(c) and requesting guidance as to how to respond to (c); and (e) January 6, 2000, Ms. Rice to Ms. Chough, responding to (d), including providing further guidance." Reed Decl. at 45; Gonzales Decl. Ex. A at 26. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as this document is deliberative and predecisional: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Joint Defendants have not shown need for this document; they have asserted need for discussions regarding the government's encouragement of tobacco use abroad and this correspondence does not address this topic. See Mot. App. B at 17-18.

17. PRA181-1000-1002 [CD 331]

This document consists of three January 21, 2000 emails discussing deliberations of the Executive Branch FCTC interagency working group. They are as follows: "(a) Eugenia Chough to the members of the group summarizing matters discussed at the prior group meeting and presenting issues that need further work and follow-up, including (i) drafting language concerning the U.S. position on advertising that the World Health Organization requested and (ii) consultations with persons and groups outside the Executive Branch about the FCTC negotiations; (b) Cynthia A. Rice to Ms. Chough, with a copy to J. Eric Gould, offering her suggested edits to the language concerning advertising in (a); and (c) Ms. Chough to Ms. Rice, with a copy to Mr. Gould, offering a different edit, suggested by Thomas J. Perrelli." Reed Decl. at 45-46; Gonzales Decl. Ex. A at 26. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it contains suggestions for proposed language for the U.S. position on advertising in the FCTC, and is deliberative and predecisional in nature. For example, Ms. Rice notes, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master further believes that Joint Defendants have not shown need for this document; their need arguments focus on communications relating to the government's encouragement of the use of tobacco products abroad. See Mot. App. B at 17-18. No such discussions take place in these emails.

18. PRA181-1028-1030 [CD 335]

"This document is an email string discussing proposed edits to language being prepared for a set of proposed `draft elements' (re advertising) for discussion at the upcoming FCTC working group meeting." Reed Decl. at 46; Gonzales Decl. Ex. A at 26. The emails are as follows: "(a) January 21, 2000, Eugenia Chough to the members of the interagency working group, transmitting the proposed language and requesting comments and edits; (b) January 27, 2000, John Sandage to Ms. Chough, responding to (a) and commenting generally on the proposed language; (c) January 27, 2000, Ms. Chough to Mr. Sandage, with copies to Cynthia A. Rice and J. Eric Gould, providing revised language concerning advertising; and (d) January 28, 2000, Mr. Sandage to Ms. Chough, with copies to Ms. Rice and Mr. Gould, responding to (c) and providing his opinion of the new proposed language." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, which contains suggestions to the proposed FCTC language, and is therefore deliberative and predecisional in nature. The Special Master further believes that Joint Defendants have not shown need for this document as they have focused their need arguments on discussions pertaining to the government's efforts to encourage tobacco use abroad. See Mot. App. B at 17-18. Such discussions are not contained in this document.

19. PRA181-1085-1087 [CD 343]

"This document, although in a slightly different format and with two different emails, is substantively identical to Challenged Document #331." Reed Decl. at 46; Gonzales Decl. Ex. A at 26. Plaintiff claims the deliberative process privilege. Consistent with the recommendation for Challenged Document 331, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 343, notwithstanding Joint Defendants' asserted need.

20. PRA181-1090-1094 [CD 345]

This document consists of a series of emails dealing with FCTC issues. They are as follows: "(a) March 20, 2000, Eugenia Chough to the members of the Executive Branch interagency working group transmitting and seeking review of a draft letter from Thomas Novotny to Derek Yach, Project Manager, Tobacco Free Initiative, concerning upcoming FCTC negotiations; (b) March 21, 2000, Ann Blackwood to the members of the interagency group, seeking assistance with respect to responding to a question from Congress to Secretary Albright concerning WHO/FCTC discussions about regulation of tobacco; (c) March 21 and March 23, 2000, Gene Philhower to Ms. Blackwood, with copies to the members of the interagency group, responding to (b); and (d) March 24, 2000, Ms. Chough to David Shark, forwarding (a)-(c), recommending that USTR send a representative to the next interagency working group meeting, and providing him with an internet source for certain World Health Organization documents." Reed Decl. at 46-47; Gonzales Decl. Ex. A at 26-27. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these documents, which contain a request for input (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."), and feedback on the question, as well as comments on other related issues and a draft letter. The communications are all deliberative and predecisional in nature. This document does not contain government deliberations relating to the encouragement of tobacco use abroad,see Mot. App. B at 17-18, therefore Joint Defendants have not shown need for this document.

21. PRA181-1377-1379 [CD 368]

"This document is a October 31, 2000 email from Julie T. Bosland to Christina S. Ho transmitting and discussing a draft edited briefing paper on the Korea tobacco trade issue" and discussing the reasons for the edits. Reed Decl. at 47; Gonzales Decl. Ex. A at 27. "The attached draft paper includes a factual background, discussion of the interagency process for preparing a response to Korea, a discussion of differences within the Executive Branch as to how to proceed, and a presentation of DPC/NEC views as to how next to proceed to try to resolve the issue." Id. Plaintiff claims the presidential communications privilege and the deliberative process privilege.¹⁸

18 Joint Defendants note that Plaintiff added the claim of deliberative process privilege during the meet and confer. Mem. in Supp. at 2 n. 4.

The Special Master recommends that the Court sustain the presidential communications privilege, as the document was drafted for the Deputy Director of the Domestic Policy Council for the purpose of advising Ms. Ho, a high-level presidential advisor, on the recommendation from " REDACTED REDACTED REDACTED ," to assist in advising the President in creating Administration policy. The Special Master does not believe that Joint Defendants are entitled to this document as they have not shown how the issues addressed herein are directly relevant to a central issue in this case.

22. PRA181-1397-1402 [CD 372]

"This document is an August 3, 2000 email from Ripley Forbes to Christina S. Ho transmitting a `for internal use only' `World Conference on Tobacco or Health Questions and Answers.' This `internal use only' guidance provides background information on and suggested answers to questions about a World Health Organization report describing the tobacco industries' efforts to obstruct anti-tobacco initiatives and the Framework Convention on Tobacco Control." Reed Decl. at 47; Gonzales Decl. Ex. A at 27. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Page 1397 contains a non-substantive email and a hex dump. Pages 1398-1402 contain the Administration's position on the WHO report; while the document may be for internal use only, it is not deliberative or predecisional, and therefore not protected by the privilege.

23. PRA181-1433-1437 [CD 374]

This document consists of two June 30, 2000 emails. The first is "from Thomas Novotny to Ripley Forbes, J. Eric Gould, David Hohman, HHS, Ann Blackwood, State, and John Sandage, suggesting a meeting of the interagency group on international tobacco, attaching a strategy paper that needs further work, and making a recommendation as to whether to send further diplomatic notes or demarches. The attached paper is entitled `Draft Strategic Plan for the Negotiations on the Framework Convention on Tobacco Control [prepared by] U.S. Department of Health and Human Services,' and includes a proposed U.S. negotiating team, suggested principles for negotiations, and suggestions for further activities in support of the FCTC negotiations." Reed Decl. at 47-48; Gonzales Decl. Ex. A at 27. The second is from J. Eric Gould to Andrea Kane, forwarding the first and "discussing who should participate in the upcoming call to discuss these matters." Id. at 48. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, which contains a draft strategic plan and discussions regarding procedures and planning. This document does not address the issues raised in Joint Defendants' need arguments, accordingly, their need does not outweigh Plaintiff's privilege interest.

24. PRA181-1520-1520 [CD 377]

"This document is a June 26, 2000 email from J. Eric Gould to Lisa M. Kountoupes, Andrea Kane, and Christina S. Ho, discussing a draft letter to Rep. Waxman concerning the FCTC that the DPC received from HHS and discussing/offering his opinions as to the content of the letter and whether the letter should be sent." Reed Decl. at 48; Gonzales Decl. Ex. A at 27. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for this email. In it, Mr. Gould relates a request from Representative Waxman for a letter from the Administration, and provides his opinion on whether the Administration should do so; it therefore provides policy advice for presidential decisionmaking. In re Sealed Case, 121 F.3d at 752. The Special Master further believes that Joint Defendants have not shown need for this document as they have not established that the document contains information directly relevant to a central issue in this case.

25. PRA181-1526-1527 [CD 378]

"This document is a string of three emails discussing a request for assistance in drafting a letter from the President to certain state governors concerning Permanent Normal Trade Relations with China." Reed Decl. at 48; Gonzales Decl. Ex. A at 28. They are as follows: "(a) May 11, 2000, Jeffrey H. Oakman to Daniel H. Rosen, transmitting and discussing the draft letter and requesting assistance in preparing language for the letter, including concerning tobacco exports to China; (b) May 12, 2000, Mr. Oakman to Mr. Rosen, re-sending (a); and (c) May 12, 2000, Mr. Rosen to James R. Keith, with a copy to Mr. Oakman, forwarding (a) and (b)." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege. Here, the document contains a draft letter to be signed by the President, as well as a request from a member of the Presidential letters staff soliciting input on the President's draft letter. The Special Master does not believe that Joint Defendants are able to overcome the presumptively privileged status afforded documents protected by the presidential communications privilege, as they have not shown that the issues discussed in this correspondence are directly relevant to a central issue in this case.

26. PRA181-1534-1539 [CD 380]

"This document is an email string discussing adding the issue of China and tobacco to the agenda of an Executive Branch interagency working group meeting concerning international tobacco control, with attached draft internal talking points and questions and answers concerning the China issue." Reed Decl. at 48; Gonzales Decl. Ex. A at 28. The emails are as follows: "(a) April 12, 2000, Eugenia Chough to the members of the interagency working group, notifying them of the upcoming meeting; (b) April 12, 2000, Ms. Chough to David Shark, with copies to Ripley Forbes and J. Eric Gould, requesting draft guidance on the China tariff issue for the meeting; (c) April 14, 2000, Mr. Shark to Ms. Chough, with a copy to Mr. Gould, transmitting the draft guidance and requesting limited distribution; (d) April 21, 2000, Ms. Chough to Mr. Shark, providing her recommendations as to who should review the draft guidance; and (e) May 2, 2000, Ms. Chough forwarding (a)-(d) to Mr. Forbes and Mr. Gould. The attached draft talking points and questions and answers discuss Administration policy towards China's positions on cigarettes, including concerning the tobacco blue mold issue." Id. at 48-49. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1534-1536, which contain non-deliberative emails. The Special Master does believe that pages 1537-1539 qualify for the privilege as they contain a draft of internal points and questions and answers. As a draft, the document represents the views of EOP personnel and not the policy of the Administration. Coastal States, 617 F.2d at 866. The Special Master further believes that this document is not relevant to Joint Defendants' need assertions, i.e., communications that reflect the government's efforts to encourage smoking abroad. See Mot. App. B at 17-18.

27. PRA181-1541-1544 [CD 381]

"This document is a May 12, 2000 email exchange among members of the Executive Branch FCTC interagency working group concerning a draft paper prepared by Thomas Novotny relating to upcoming FCTC negotiations: (a) Eugenia Chough to the members of the group, notifying them that they are being faxed the paper and requesting their review thereof; and (b) John Sandage to the members of the group, presenting State Department's suggested edits to the paper." Reed Decl. at 49; Gonzales Decl. Ex. A at 28. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1541-1542, which contain only an email distribution list, and for page 1544, which is blank. Page 1543 is protected by the privilege because it contains editorial suggestions for the draft paper and talking points, and is therefore deliberative and predecisional in nature. Further, these communications do not relate to Joint Defendants' need arguments as they do not address the government's purported encouragement of tobacco use abroad. See Mot. App. B at 17-18.

28. PRA181-1582-1587 [CD 383]

"This document is a December 7, 2000 email from Bill Corbett to Julie T. Bosland and Christina S. Ho transmitting a December 6, 2000 [memorandum] from Mr. Corbett to Ms. Bosland and Ms. Ho, in turn transmitting a memorandum of the same date from Al Larson and Mr. Corbett to Gene Sperling concerning `Tobacco Issues Arising Under a 1998 U.S.-Korea Trade Agreement and in Upcoming FTA Negotiations with Singapore and Chile.'" Reed Decl. at 49; Gonzales Decl. Ex. A at 28. Mr. Reed explains that "[t]he memorandum to Mr. Sperling discusses staff recommendations as to how to proceed with respect to tobacco-related trade matters and makes recommendations to Mr. Sperling in that regard. Included as an attachment to the memorandum is a document entitled `Summary of Interagency-Agreed Actions on Korea Tobacco Issue (11/8/00, with Updates as of 11/29/00),' setting forth six courses of action agreed to at a November 8 interagency meeting (for internal use only)." Id. Plaintiff claims the presidential communications and deliberative process privileges.

The memorandum to Mr. Sperling, contained at pages 1583-1587, is a duplicate of the memorandum contained at 0613-0617 in Challenged Document 274. Consistent with the recommendation for Challenged Document 274, the Special Master recommends that the Court sustain the presidential communications privilege for pages 1583-1587, and overrule the claim for page 1582, which is a forwarding, non-deliberative email, not intended to provide advice to the President. The Special Master does not believe that Joint Defendants have shown need as they have not demonstrated that pages 1583-1587 are directly relevant to a central issue in this case.

29. PRA181-1588-1590 [CD 384]

"This document is two brief November 6, 2000 emails transmitting and discussing the background memorandum concerning Korea tobacco described in Challenged Document #368: (a) Kenneth W. Bernard to Julie T. Bosland, requesting the briefing paper and guidance as to who on the NEC he should contact; and (b) Ms. Bosland to Mr. Bernard, with copies to Christina S. Ho and Corbett, forwarding the briefing paper (noting that it is not for general dissemination) and providing Mr. Bernard with the appropriate NEC contact persons." Reed Decl. at 50; Gonzales Decl. Ex. A at 28-29. Plaintiff claims the deliberative process and presidential communications privileges.

Pages 1589-1590 of this document are duplicates of pages 1378-1379 of Challenged Document 368. Consistent with the recommendation for Challenged Document 368, the Special Master recommends that the Court sustain the presidential communications privilege claim for pages 1589-1590 of Challenged Document 384, notwithstanding Joint Defendants' asserted need. Page 1588 is not protected, as it is a non-deliberative forwarding email, not intended to provide advice for the President.

30. PRA181-1624-1628 [CD 388]

"This document is an October 25, 2000 email from Kevin Burke to a large group of HHS and White House personnel transmitting and discussing a draft Executive Order on `Federal Leadership on Tobacco Control and Prevention in China.' The email lists the changes made to the draft by Ripley Forbes." Reed Decl. at 50; Gonzales Decl. Ex. A at 29. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 1625, which contains only an unreadable hex dump. The Special Master further recommends that the Court sustain the presidential communications privilege for pages 1626-1628, which contain a draft Executive Order, and page 1624, which is an email discussing the draft. As the Executive Order is issued by the President, this draft, as well as the comments to the draft, qualify for protection under the presidential communications privilege. Moreover, the Special Master does not believe that Joint Defendants have shown need for this document, as they have not demonstrated that these communications are directly relevant to a central issue in this case.

31. PRA181-1633-1635 [CD 389]

"This document is a November 7, 2000 email from Christina S. Ho to Barbara Chow and Andrea Kane transmitting a November 2, 2000 memorandum from William Corbett to Gene Sperling and Al Larson concerning `Korea's Possible Legislative Changes on Tobacco.'" Reed Decl. at 50; Gonzales Decl. Ex. A at 29. Mr. Reed attests that "[t]he memorandum reports on an initial interagency discussion chaired by the DPC and NEC to decide what action, if any, should be taken regarding possible legislative changes by Korea toward tobacco" and "further presents various Executive Branch agencies' positions, including disagreements among agencies." Id. Plaintiff claims the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the privilege claims for page 1633, which contains only a blank email and hex dump. The Special Master further recommends that the Court sustain the presidential communications privilege claim for the memorandum to the Director of the National Economic Council, contained at pages 1634-1635. This memorandum contains possible action for the Administration, such as: "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." It therefore provides information and advice to a high-level presidential advisor to assist in formulating advice for the President. Joint Defendants have not shown need for this document as they have not demonstrated that the discussions contained in this email are directly relevant to a central issue in this case.

32. PRA181-1642-1647 [CD 391]

This document consists of three October 2, 2000 emails. The first is from Linda Bailey to Julie T. Bosland and Christina S. Ho, with a copy to Joy Epstein, "transmitting and discussing briefly a revised September 29, 2000 memorandum from Ms. Bailey and Larry Green to Thomas Novotny providing `Comments from CDC on Draft Guidance for FCTC'" and "explain[ing] the change made to the attached memorandum," which "provides substantive corrections, a redlined section, and editorial corrections to the draft guidance prepared by the DPC interagency working group." Reed Decl. at 50-51; Gonzales Decl. Ex. A at 29. The second email is from "Ms. Bosland to Ms. Bailey, with copies to Ms. Ho and Ms. Epstein, stating her differing understanding as to what was agreed to with respect to the redlined correction suggested by CDC and asking for Ms. Bailey's further input on that issue."Id. at 51. The third is from Ms. Epstein to Ms. Bosland and Ms. Bailey, with a copy to Ms. Ho, concurring with Ms. Bosland's views and requesting Ms. Bailey's views. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1644, which contains only a hex dump. The Special Master does believe that the draft comments at pages 1645-1647, which contain the CDC comments to the FCTC draft guidance, and the emails at pages 1642-1643, which provide additional comments to the CDC comments, are protected by the privilege as they reflect the give and take of the agency's deliberative process. The Special Master does not believe that these communications are relevant to Joint Defendants' need arguments, which address deliberations regarding the government's encouragement of the use of tobacco products abroad. See Mot. App. B at 17-18.

33. PRA181-1679-1683 [CD 394]

"This document is a March 5, 1998 email from Eric Peterson to Sherman G. Boone, transmitting two papers for proposed inclusion in the Administration's statements concerning international tobacco control: (a) `Restrictions Related to Tobacco Products Outside the United States,' which addresses restrictions in advertising; and (b) `Principles to Guide Public Health Efforts to Reduce Global Tobacco Use,' which sets forth a goal and four principles to serve as guidelines for achieving the goal." Reed Decl. at 51; Gonzales Decl. Ex. A at 29. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1679, which contains a non-deliberative email, and for pages 1680-1681, which contain document tracking information. The Special Master further recommends that the Court overrule the privilege claim for pages 1682-1683, which appear to contain statements of Administration policy; Mr. Reed states that these statements were proposed to be included in the Administration's statements, but he does not assert that they were drafts, or were themselves predecisional or deliberative. Accordingly, the Special Master recommends that the Court overrule the privilege claim for the entire document.

34. PRA181-2172-2173 [CD 435]

"This document is three emails between Daniel H. Rosen and Jeffrey H. Oakman concerning whether to respond to a letter regarding China and tobacco: (a) June 27, 2000, Mr. Rosen to Mr. Oakman, relaying information from the Department of Agriculture as to whether to respond and providing his recommendation; (b) June 27, 2000, Mr. Oakman to Mr. Rosen, providing a draft response to the letter; and (c) Mr. Rosen to Mr. Oakman, suggesting a minor change." Reed Decl. at 51; Gonzales Decl. Ex. A at 29-30. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege. The email correspondence contains and relates to a draft letter to be sent by the President regarding Permanent Normal Trade Relations with China and tobacco policy. Because it contains information solicited and received by high-level presidential advisors in the course of formulating correspondence for the President's signature, it should be protected by the privilege. Joint Defendants have not shown need for this document as they have not demonstrated that the information contained herein is directly relevant to a central issue in this case. Additionally, they cannot show that similar information is not available with due diligence from other sources as they have access to any final correspondence on this issue sent by the President.

35. PRA181-2174-2175 [CD 436]

"This document is an October 31, 2000 email from Christina S. Ho to Julie T. Bosland asking Ms. Bosland to review, get further information for, and seek assistance from William Corbett concerning her draft of a report that she intends to give to Andrea Kane (see Challenged Document #449) about the Korea (tobacco) trade issue." Reed Decl. at 51-52; Gonzales Decl. Ex. A at 30. Mr. Reed explains that "[t]he memorandum provides background on the issue and the status of Executive Branch efforts (including efforts to resolve differences among Executive Branch components) to develop an Administration position to take in negotiations with Korea concerning Korea's proposed tobacco tariffs. Ms. Ho concludes her report with the Office of Policy Development (DPC and National Economic Council) recommendation for the United States' position." Id. at 52. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. In the email, Ms. Ho provides a draft memorandum on the Korean tobacco issue, flagging areas in need of additional information, and requesting assistance from Ms. Bosland to finish the memorandum. As a draft, it represents the views of the EOP employees involved in writing the memorandum, and not the views of the Administration. Coastal States, 617 F.2d at 866. Joint Defendants have argued need for deliberations addressing the government's efforts to increase tobacco use abroad; this document contains no such discussions.

36. PRA181-2204-2215 [CD 442]

"This document an October 24, 2000 email from Kevin Burke to a large group of HHS, White House, and OMB personnel transmitting and discussing briefly a draft of an executive order concerning tobacco control policy and China, including noting changes made from an earlier draft." Reed Decl. at 52; Gonzales Decl. Ex. A at 30. Mr. Reed explains that the attachments include a draft executive order entitled "Federal Leadership on Global Tobacco Control and Prevention;" a Trade Policy Staff Committee paper entitled "Section 337: Certain Cigarettes and Packaging thereof," which includes a recommendation by the committee as to what action the President should take with respect to a general exclusion order and cease and desist order by the U.S. International Trade Commission; a memorandum from Stephen Kho through Robert T. Novick to Charlene F. Barshevsky concerning a "Recommendation to the President on Section 337 Orders;" and a memorandum for the President from Ambassador Barshevsky concerning "policy review of Section 337 orders," with a recommendation.Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. It contains a draft Executive Order to be signed by the President, a Memorandum for the U.S. Trade Representative, and a Memorandum for the President. Thus, all the documents are either directed to the President, a high-level presidential adviser charged with formulating advice for the President, or contain discussions of one of these documents. The Special Master does not believe that Joint Defendants have shown need, as they have not demonstrated that the information contained in these documents relates to a central issue in this case.

37. PRA181-2247-2248 [CD 449]

"This document is the internal report from Christina S. Ho to Andrea Kane on the Korea tobacco issue that is described in Challenged Document #436." Reed Decl. at 52; Gonzales Decl. Ex. A at 30. Mr. Reed explains that, "[a]lthough this memorandum is a `final' version, it remains an internal deliberative, pre-decisional document." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim; Ms. Ho addresses this document to Ms. Kane, the Associate Director for Domestic Policy and "an immediate White House adviser's staff who [has] broad and significant responsibility for formulating advice to be given the President on the particular matter to which the communications relate." In re Sealed Case, 121 F.3d at 722. Additionally, Joint Defendants have not shown need for this document as they have not demonstrated that the document contains information that is directly relevant to a central issue in this case.

38. PRA181-2332-2332 [CD 459]

"This document is a December 11, 2000 email from William Kissinger to Amy Mall responding to a December 4, 2000 email from Ms. Mall to a large group of White House personnel (not part of this document), relating his understanding of the status of certain unresolved matters, including Korea/tobacco." Reed Decl. at 53; Gonzales Decl. Ex. A at 30. Mr. Reed notes that "Mr. Kissinger briefly describes the current Administration thinking as to how to approach this issue." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as the email reflects that no final decisions have yet been made on the tobacco issue: "REDACTED REDACTED REDACTED REDACT" The Special Master further believes that Joint Defendants have not shown need for this document, as their arguments assert need for documents addressing the government's encouragement of smoking abroad. See Mot. App. B at 17-18. No such discussions are present here.

39. PRA181-2356-2357 [CD 463]

Mr. Reed explains that "[t]his document was released to Joint Defendants, redacting only the Social Security number for Gary Newton." Reed Decl. at 53; Gonzales Decl. Ex. A at 30. The Special Master recommends that the Court sustain the privilege claim for the proposed redaction.

40. PRA181-2402-2404 [CD 471]

"This document is a series of emails discussing the Korea tobacco issue." Reed Decl. at 53; Gonzales Decl. Ex. A at 30-31. The first is dated November 28, 2000, and is from Frank W. Stanley to Jonathan E. Mudge, with copies to Frederick W. Maerkle, Edwin C. Sagurton, Richard S. Sacks, Anne M. Galer, and Youngeun H. Anderson, responding to a request for information on the issue from Linda Bailey. The second is dated November 29, 2000, from Mr. Mudge to Julie T. Bosland, with copies to Christina S. Ho and Ms. Bailey, forwarding the first. The third is dated November 30, 2000, and is from Ms. Bailey to Mr. Mudge and Ms. Bosland, with copies to Ms. Ho and Burke Fishburn, responding to the second email and requesting information about Japan Tobacco and the Korean market. The fourth is also dated November 30, and is from Ms. Bosland to Ms. Bailey, with copies to Mr. Mudge, Ms. Ho, and Mr. Fishburn, asking if Ms. Bailey had received the information she was looking for. The final email is Ms. Bailey's response. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2402, which contains non-deliberative emails. Pages 2403-2404 do qualify for the privilege as they provide information requested by Ms. Bailey to be used in developing Administration policy on the Korean tobacco issue. The Special Master does not believe that Joint Defendants have shown need for this document, as they have claimed need for discussions addressing the government's efforts to encourage the use of tobacco products abroad, see Mot. App. B at 17-18, and no such discussions are present here.

41. PRA181-2422-2423 [CD 472]

"This document is two December 15, 2000 emails: (a) John Sandage to Thomas Novotny, notifying him of a tobacco trade matter — request for assistance by a tobacco company selling tobacco in Poland — and describing what would need to be done to determine how to respond to the request for assistance; and (b) Dr. Novotny to Mr. Sandage, with copies to Kenneth W. Bernard, Christina S. Ho, Amal Thomas, Office of the Secretary, HHS, and Lynne Lambert, responding to (a)." Reed Decl. at 54; Gonzales Decl. Ex. A at 31. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2423, which contains only the email delivery information. Page 2422 does qualify for the privilege, as it contains a request for assistance (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED "), and a request for additional information, and therefore is deliberative and predecisional in nature to the question of how to respond to the request for assistance. Joint Defendants have not shown need for this email as their need arguments seek deliberations relating to the government's encouragement of smoking abroad, see Mot. App. B at 17-18, and no such discussions are present here.

42. PRA181-2555-2565 [CD 494]

This document consists of three emails from Eugenia Chough to the members of the Executive Branch FCTC interagency working group. They are as follows: "(a) August 9, 1999, notifying them of an upcoming meeting, including matters to be discussed; (b) August 31, 1999 reminder of the upcoming meeting; and (c) September 1, 1999, transmitting and discussing briefly HHS's draft memo of the United States' negotiating position at the FCTC. The draft memo is entitled `United States Principles for Negotiation of the Framework Convention on Tobacco Control.'" Reed Decl. at 54; Gonzales Decl. Ex. A at 31. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for the following pages: 2555 (email distribution list), 2556-2557 (non-deliberative email correspondence), and 2558-2563 (email distribution list, hex dump, and blank page). Pages 2564-2565 do qualify for the privilege as they contain the draft of the U.S.'s principles for negotiation of the FCTC, and, as a draft, reflect the views of government employees and not the policy of the Administration. Coastal States, 617 F.2d at 866. Joint Defendants have not shown need for these pages as they have asserted need for discussions pertaining to the government's encouragement of the use of tobacco products abroad, see Mot. App. B at 17-18, and no such discussions are contained here.

43. PRA181-2566-2583 [CD 495]

This document consists of three emails from Eugenia Chough to the members of the Executive Branch FCTC interagency working group. They are as follows: "(a) September 7, 1999, following up on a prior meeting of the group, including listing matters discussed and work to be done; (b) September 9, 1999, asking agencies and components to designate representatives for an upcoming conference call; and (c) September 16, 1999, reminding the members of the group of the upcoming conference call and transmitting for their review `a revised draft negotiation document for the International Framework Convention.'" Reed Decl. at 54; Gonzales Decl. Ex. A at 31. Mr. Reed explains that "[t]he attached draft memo is an updated version of the paper described in Challenged Document #494." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 2566-2568, which contain non-deliberative emails, and for pages 2569-2581, which is a hex dump. The Special Master further recommends that the Court sustain the privilege claim for pages 2582-2583, which contain an updated (but still draft) version of Challenged Document 494, notwithstanding Joint Defendants' asserted need.

44. PRA181-2698-2720 [CD 498]

"This document is an October 13, 1999 email from Eugenia Chough to the members of the Executive Branch FCTC interagency working group transmitting and explaining briefly changes made to the HHS-prepared `United States Principles for Negotiation of the Framework Convention on Tobacco Control.' The revised attached draft, dated October 13, 1999, now is entitled `FRAMEWORK CONVENTION ON TOBACCO CONTROL Guidelines — Staff Draft.'" Reed Decl. at 54-55; Gonzales Decl. Ex. A at 31. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2698, which contains only an email distribution list, for pages 2701-2714, which is a hex dump, and for page 2715, which is blank. The Special Master believes that the draft guidelines and questions contained at pages 2716-2720, and the email at pages 2699-2670, which discuss proposed changes to an earlier draft of the document, are privileged as they reflect the give and take of the EOP's deliberative process. Joint Defendants have not shown need for this document; they have claimed need for deliberations addressing the government's encouragement of tobacco consumption abroad, and no such discussions are contained here.

45. PRA181-2733-2750 [CD 499]

This document consists of two emails from Eugenia Chough to the members of the Executive Branch FCTC interagency working group. The first is dated October 8, 1999, and attaches "documents to be reviewed by the group at a meeting that day and discussing briefly an issue that the group must resolve (which of the first two attachments should be sent to the `principals,' that is, the senior Executive Branch officials who must make the final recommendations to the President as to how to proceed." Reed Decl. at 55; Gonzales Decl. Ex. A at 32. The second is dated October 12, 1999, and reminds members of the group of work still to be done. "The documents transmitted with the earlier email are: (i) `Option 1: Decision Memo,' listing three issues that must be resolved and the group's recommendations on those issues; (ii) `Option 2: Informational Memo,' providing background and listing policy issues, but not seeking specific decisions from the principals; (iii) October 7, 1999 draft of the HHS-prepared (and group-revised) `FRAMEWORK CONVENTION ON TOBACCO CONTROL Guidelines — Staff Draft'; and (iv) draft `International Framework Convention on Tobacco Control Tobacco Consultations List,' which lists the working group's recommendations of persons and groups that should be contacted/consulted as part of the process of preparing for the FCTC negotiations." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 2733-2734 and 2737, which contain only an email distribution list, and for pages 2735-2736, which contain non-deliberative email correspondence. The Special Master further recommends that the Court overrule the presidential communications privilege for this document, as this information was not solicited and received by high-level presidential advisers for the purpose of formulating advice to be given to the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.").

Pages 2738-2750 are deliberative and predecisional in nature as they contain drafts of recommendations for which comments are sought, and therefore reflect the opinions of government personnel and not the policy of the Administration. Coastal States, 617 F.2d at 866. Moreover, Joint Defendants have not shown need for this document; they assert need for communications addressing the government's encouragement of the use of U.S. tobacco products abroad, and no such discussions are present here.

G. Documents Relating to Tobacco Farmers

One of President Clinton's concerns regarding the June 1997 proposed settlement between the states' attorneys general and the tobacco industry, was that "protection for tobacco farmers and their communities" be one of "the five key elements that must be at the heart of any national tobacco legislation." Reed Decl. at 55. Accordingly, the Executive Branch "considered various proposals dealing with United States tobacco farmers, including proposals to assist tobacco farmers who chose or would be required to cease growing tobacco as part of any national tobacco legislation or settlement with the tobacco companies." Id. at 55-56. The "purpose of the review and analysis of the proposed settlements and legislation was (1) to assist the White House, OMB, and the Executive Branch agencies and offices in becoming familiar with and understanding the work being done with respect to tobacco farmer issues, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch should take with respect to the issues and any proposed legislation, regulations, or programs." Id. at 56.

Mr. Reed explains that "[m]ore specifically, the documents in this group were generated for the following purposes: (i) to provide advice to the President on holding a roundtable discussion between tobacco farmers and members of the public health community or the possible formation of a commission to study ways to protect tobacco farmers while at the same time promoting public health, including concerning the tasks to be performed by the commission, the membership of the commission, and the preparation of an Executive Order or Memorandum announcing the commission (the challenged documents in this group not specifically included in any of the following subgroups); (ii) determining generally what advice to give to the President on how to provide assistance to tobacco farmers (Challenged Documents ##222, 224, 313, 329, 338, 357, 359); (iii) determining how to respond to proposed legislation to assist tobacco farmers and to Kentucky Gov. Patton's proposal for a tobacco farmer boy-out [sic] (Challenged Documents ## 53, 296, 371)." Id.

Joint Defendants assert their belief that "these documents contain discussions and communications concerning the Government's long-standing support of domestic tobacco farmers and attempts by the Government to open and expand foreign markets for domestic tobacco products. As a consequence of its deliberate actions, the Government has contributed to increased rates of smoking initiation and prevalence." Mot. App. B at 17. They further assert that:

discussions or analyses regarding the impact of federal farm-subsidy . . . on federal revenues likely reflect the Government's long-standing policy to balance the public health consequences associated with tobacco use with the Government's express interest in protecting the national economy and collecting billions of dollars in cigarette taxes. Likewise, such discussions and communications are relevant insofar as they acknowledge that the Federal government has deliberately and consciously struck this balance with full awareness, knowledge, and in some instances support, of Joint Defendants' allegedly fraudulent conduct. Finally, such discussions offer insight into the equity of the Government's participation in, and profiting of, Joint Defendants' alleged RICO conspiracy, as well as what the Government believed was appropriately considered in determining whether to promote and sponsor the growth of domestic tobacco and the sale of tobacco products in foreign markets.

Id. at 18 (citation omitted).

1. PRA079-0377-0377 [CD 24]

"This document is a February 10, 1998 email from Maurice Daniel to Toby Donenfeld seeking guidance as to how to respond, on behalf of the President and the Vice President, to requests from senators for information on the Administration's legislative position on tobacco farmers." Brown Decl. at 8; Gonzales Decl. Ex. A at 32. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as the email seeks advice on a proposed statement of policy: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any contribution of the government to an increase in smoking rates, nor does it promote or sponsor the growth of domestic tobacco.

2. PRA172-4186-4186 [CD 53]

"This document is February 18, 1999 memorandum from Keith Pitts to Thomas L. Freedman with suggestions for/concerning a tobacco farmer trust fund proposal, including purposes for such a trust fund." Reed Decl. at 56; Gonzales Decl. Ex. A at 32. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim; the document contains a proposal for a tobacco farmer trust fund, and it is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any contribution of the government to an increase in smoking rates, nor does it promote or sponsor the growth of domestic tobacco. See Mot. App. B at 17-18. Rather, it proposes assistance to farmers and their communities, in the form of economic assistance and crop transition.

3. PRA181-0009-0011 [CD 204]

This document consists of "two emails transmitting and discussing an attached outline of a proposal that the President convene a roundtable discussion between tobacco farmers and the public health community. The outline of the proposal characterizes problems facing tobacco farmers and the relationship between tobacco farmers and the public health community, sets forth a preliminary list of topics proposed to be discussed at the roundtable, and suggests several actions the President might take following the roundtable." Reed Decl. at 56; Gonzales Decl. Ex. A at 32. Mr. Reed explains that while "no author is indicated on the face of the outline, it appears from the emails in this document and Challenged Document #206 that the proposal likely was drafted by J. Eric Gould." Id. at 56-57. "The emails are: (a) June 5, 2000, Thomas L. Freedman to Mr. Gould suggesting that Mr. Gould share the proposal with Bruce N. Reed; and (b) June 6, 2000, Mr. Gould to Mr. Reed, with copies to Andrea Kane, Cathy Mays, and Mr. Freedman, transmitting the outline and seeking guidance on what further action should be taken regarding the proposed roundtable." Id. at 57. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege, as the proposal suggests Presidential action that could be taken with respect to the convening of a tobacco roundtable. Joint Defendants have not shown need for this document as they have not demonstrated that the information contained herein is directly relevant to a central issue in this case., nor have they shown that similar information is not available with due diligence from other sources.

4. PRA181-0045-0047 [CD 206]

"This document consists of two emails between J. Eric Gould and Thomas L. Freedman discussing a proposed roundtable discussion between tobacco farmers and the public health community to be convened by the President." Reed Decl. at 57; Gonzales Decl. Ex. A at 32-33. The first is dated May 31, 2000, and is from Mr. Freedman to Mr. Gould, "recommending that a memorandum outlining the proposed roundtable be prepared and circulated for review and comment; the email includes Mr. Freedman's opinions about what subjects should be addressed in the memorandum and what actions should be taken following circulation of the memorandum and seeks Mr. Gould's opinion on these matters." The second is dated June 1, 2000, and is from Mr. Gould to Mr. Freedman, responding to the first "with his opinions and recommendations about two topics addressed in the memorandum. The emails include as an attachment an outline of the proposed roundtable `Tobacco Roundtable Discussion Between Tobacco Farmers and the Public Health Community.' The outline of the proposal is a duplicate of the attachment described in Challenged Document #204." Id. Plaintiff claims the deliberative process privilege.

With respect to Challenged Document 204, the Special Master recommended that the Court sustain the claim of presidential communications privilege. Therefore, because the "differences between the presidential communications privilege and the deliberative privilege demonstrate that the presidential privilege affords greater protection against disclosure," In re Sealed Case, 121 F.3d at 746, the Special Master recommends that the Court sustain the deliberative process privilege claim for Challenged Document 206, which contains the same proposal as Challenged Document 204, along with two emails discussing specific aspects of the proposal and additional action proposed to be taken.

5. PRA181-0053-0054 [CD 207]

This document consists of two emails dated October 2, 2000. The first is from "John Winski to a large group of White House personnel, providing an update on the tobacco farmer commission and soliciting guidance on issues related to that commission (where should the commission meet; comments on proposed members of the commission)." Reed Decl. at 57; Gonzales Decl. Ex. A at 33. The second is from "Christina S. Ho to Mr. Winski and Andrea Kane responding to the first email and identifying additional individuals as potential members of the President's commission on tobacco farmers. The email also reports on a discussion Ms. Ho had with the Department of Health and Human Services and indicates who from the public health community HHS preferred as members of the commission."Id. Mr. Reed explains that "[t]he President was involved directly in reviewing and approving the membership of the commission proposed by the Secretary of the Department of Agriculture, and this email was created in the process of generating advice to be given to the President about the proposed membership of the Commission." Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for this document, as it contains information solicited and received by presidential advisers to provide to the President regarding potential members of the Tobacco Commission, which were to be appointed by the President. Joint Defendants have not shown need to overcome the presumptively privileged status afforded these communications, as they have not demonstrated that these discussions are directly relevant to a central issue in this case.

6. PRA181-0067-0069 [CD 208]

This document consists of a string of four emails regarding the President's commission on tobacco farmers. They are as follows: "(a) a duplicate of the email described in Challenged Document #207; (b) October 4, 2000, Christina S. Ho to Andrea Kane, raising a question as to whether one of the meetings proposed in the original email should take place; (c) October 5, 2000, Ms. Ms. Kane to Ms. Ho, John Winski, Thomas L. Freedman, and Matthew Bennett, responding to (b) and asking that additional research be done before a decision is made as to whether the meeting should take place; and (d) October 5, 2000, Mr. Winski to Ms. Kane, Ms. Ho, Mr. Freedman, and Mr. Bennett, responding to (c) and describing his understanding of how the commission would operate and what meetings would take place after the membership was finalized and the commission was announced." Reed Decl. at 58; Gonzales Decl. Ex. A at 33. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendation for Challenged Document 207, the Special Master recommends that the Court sustain the presidential communications privilege claim for Challenged Document 208, which is a partial duplicate of Challenged Document 207, with additional email discussions of the Tobacco Commission. These documents contain information solicited and received by presidential advisers for the purpose of advising the President regarding the Commission and its appointments. Joint Defendants have not established need for this information as they have not shown that these discussions are directly relevant to a central issue in this case.

7. PRA181-0104-0106 [CD 209]

"This document consists of a string of five emails that are duplicates of emails (a) through (e) described under Challenged Document #217." Reed Decl. at 58; Gonzales Decl. Ex. A at 33. Plaintiff claims the deliberative process and presidential communications privileges. Consistent with the recommendation for Challenged Document 217, the Special Master recommends that the Court overrule the presidential communications privilege and sustain the deliberative process privilege claim for Challenged Document 209, notwithstanding Joint Defendants' asserted need.

8. PRA181-0107-0109 [CD 210]

"This document consists of a string of five emails, the first four-in-time of which are duplicates of emails (a) through (d) described under Challenged Document 217. The fifth-in-time email is dated October 13, 2000 and is from Christina S. Ho to John Winski, providing her opinion on the notification plan described as email (b) under Challenged Document #217." Reed Decl. at 58; Gonzales Decl. Ex. A at 33. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendation for Challenged Document 217, the Special Master recommends that the Court overrule the presidential communications privilege claim and sustain the deliberative process privilege claim for Challenged Document 210, notwithstanding Joint Defendants' asserted need.

9. PRA181-0110-0112 [CD 211]

"This document consists of a string of three emails that are duplicates of emails (a) through (c) described under Challenged Document #217." Reed Decl. at 59; Gonzales Decl. Ex. A at 34. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0112, which contains only an email distribution list and no substantive information. Consistent with the recommendation for Challenged Document 217, the Special Master recommends that the Court overrule the presidential communications privilege claim and sustain the deliberative process privilege claim for pages 0110-0111, notwithstanding Joint Defendants' asserted need.

10. PRA181-0113-0115 [CD 212]

"This document is a string of four emails, the first three-in-time of which are duplicates of emails (a) through (c) described in Challenged Document #217. The fourthin-time email is dated October 13, 2000 and is from Lisa M. Kountoupes to Christina S. Ho, Joanne E. Slaney, John Winski, and Andrea Kane, providing Ms. Kountoupes' response and opinion with regard to the suggestions made by Ms. Ho in the email described as (c) under Challenged Document #217." Reed Decl. at 59; Gonzales Decl. Ex. A at 34. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0115, which contains only an email distribution list and no substantive information. Consistent with the recommendation for Challenged Document 217, the Special Master recommends that the Court overrule the presidential communications privilege claim and sustain the deliberative process privilege claim for pages 0113-0114, notwithstanding Joint Defendants' asserted need.

11. PRA181-0140-0142 [CD 214]

"This document consists of a string of four emails that are duplicates of emails (a) through (d) described under Challenged Document #217." Reed Decl. at 59; Gonzales Decl. Ex. A at 34. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendation for Challenged Document 217, the Special Master recommends that the Court overrule the presidential communications privilege claim and sustain the deliberative process privilege claim for Challenged Document 214, notwithstanding Joint Defendants' asserted need.

12. PRA181-0181-0199 [CD 215]

Plaintiff has released the bottom of page 0183 through page 0185 and 0192-0199, and continues to claim the presidential communications privilege for pages 0181 through the top of page 0183, and pages 0186-0191. Reed Decl. at 59; Gonzales Decl. Ex. A at 34. "The withheld portion of this document consists of a string of emails transmitting and discussing draft questions and answers regarding the President's signing of an executive order establishing the President's Commission on Improving Economic Opportunity in Communities Dependent on Tobacco Production While Protecting Public Health."Id. Mr. Reed explains that "[t]he draft questions and answers are clearly labeled as a draft and the emails transmitting them indicate that edits are still being made to them." Id. "The withheld emails, dated September 22, 2000, are: (a) Scott Beale to Anna Richter, Karin Kullman, and John Winski informing the recipients that a portion of the questions and answers may not be accurate and requesting that an edit be made to them; and (b) Ms. Richter to Mr. Beale, Ms. Kullman, and Mr. Winski, responding to the suggested edit and indicating that the questions and answers are for internal use only." Id.

The Special Master recommends that the Court overrule the privilege claim for pages 0182-0183, which contain only non-substantive emails, and for page 0186, which indicates a hex dump. The Special Master further recommends that the Court overrule the presidential communications privilege claim for the draft QA contained at pages 0187-0191; Plaintiff has not demonstrated that this information was solicited and received by high-level presidential advisers for the purpose of formulating advice to be given the President. Rather, it appears that these discussions were part of the internal agency deliberative process. A comparison of the draft questions and answers at pages 0187-0191 with the final, which Plaintiff released, at 0195-0199, reveals however that the proposed changes were incorporated into the final; these pages therefore are not protected by the deliberative process privilege. "[E]ven if the document is predecisional at the time it is prepared, it can lose that status if it is adopted, formally or informally, as the agency position on an issue or is used by the agency in its dealings with the public." Coastal States, 617 F.2d at 866.

The Special Master does believe that page 0181 qualifies for the deliberative process privilege as it discusses a policy determination: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED" The Special Master does not believe that Joint Defendants have shown need for this page, which does not relate to any contribution of the government to an increase in smoking rates, or the promotion or sponsorship of the growth of domestic tobacco abroad.

13. PRA181-0243-0247 [CD 217]

"This document consists of a string of nine emails discussing the President's commission on tobacco farmers, including the organization of the commission, the Administration's plans for publicizing the commission and its proposed activities, and draft questions and answers regarding the activities of the commission." Reed Decl. at 60; Gonzales Decl. Ex. A at 34-35. The emails are:

(a) October 12, 2000, David W. Beier to John Winski, Thomas L. Freedman, Mary L. Smith, Matthew Bennett, Andrea Kane, Christina S. Ho, Barbara D. Woolley, Ronna A. Freiberg, and Emil J. Barth, requesting preparation of an internal notification plan to be used to guide individuals responsible for notifying Congress and other governmental agencies about the commission; (b) October 13, 2000, Mr. Winski responding to all individuals identified in (a), expressing his opinion about when the commission should be announced, reporting on the status of discussions with the USDA regarding its notification to the President of appointments to the Commission, and transmitting the proposed notification plan requested in (a) and seeking input and comments from the recipients on the plan; (c) October 13, 2000, Ms. Ho to Joanne E. Slaney, Lisa M. Kountoupes, Mr. Winski, and Ms. Kane, forwarding (b), recommending the addition of two senators to the proposed notification plan and requesting that Ms. Slaney and Ms. Kountoupes review the notification plan and forward their input to Mr. Winski; (d) October 13, 2000, Mr. Winski to Ms. Ho, Ms. Slaney, Ms. Kountoupes, and Ms. Kane, responding to (c) and editing the notification plan; (e) October 13, 2000, Ms. Kane to Mr. Winski, Ms. Ho, Ms. Slaney, and Ms. Kountoupes, responding to (c) and (d) and providing input about the timing of the announcement of the commission and the notification plan and suggesting further internal action prior to the announcement; (f) October 13, 2000, Mr. Winski to Ms. Kane, Ms. Ho, Ms. Slaney, and Ms. Kountoupes, responding to Ms. Kane's suggestions and questions from (e); (g) October 13, 2000, Ms. Kane to Mr. Winski, Ms. Ho, Ms. Slaney, and Ms. Kountoupes, responding to (f) and expressing opinions regarding press aspects of the announcement of the commission; (h) October 13, 2000, Mr. Winski to Ms. Kane, Ms. Ho, Ms. Slaney, and Ms. Kountoupes, forwarding and seeking comments on draft proposed questions and answers regarding the commission and seeking opinion as to whether formal questions and answers were necessary; and (i) October 14, 2000, Ms. Kane to Mr. Winski, Ms. Ho, Ms. Slaney, and Ms. Kountoupes, expressing her opinion about the questions and answers transmitted in (h).

Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege claim as Plaintiff has not shown that the communications here were solicited and received by high-level presidential advisers for the purpose of advising the President, as the appointees for the Commission have already been chosen, and it appears that the emails contain the deliberations of EOP employees in planning for the announcement of the Tobacco Commission. Accordingly, the deliberative process privilege applies. The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any contribution of the government to an increase in smoking rates, nor does it promote or sponsor the growth of domestic tobacco abroad.

14. PRA181-0284-0285 [CD 221]

"This document consists of a string of four emails regarding the President's Commission on Improving Economic Opportunity in Communities Dependent on the Production to Tobacco While Protecting Public Health. The emails discuss potential nominees to the Commission and the manner in which calls to Congress regarding the Commission should be handled." Reed Decl. at 61; Gonzales Decl. Ex. A at 35. The emails are as follows: "(a) October 12, 2000, John Winski to Thomas L. Freedman, Smith, Matthew Bennett, Andrea Kane, Christina S. Ho, David W. Beier, Barbara D. Woolley, Ronna A. Freiberg, and Timothy P. Morningstar asking for their input regarding a proposed final list of nominees to the Commission and indicating that, after their input was received, the Department of Agriculture would prepare a memorandum to the President identifying the nominees the Secretary would like to appoint; (b) October 12, 2000, Mr. Morningstar to Mr. Winski and Ms. Freiberg suggesting the manner in which congressional calls should be handled and asking about the timing of the announcement of the nominees; (c) October 12, 2000, Mr. Winski to Mr. Morningstar, responding to question in (b) about the timing of the announcement of the nominees; and (d) October 16, 2000, Mr. Winski to Mr. Beale, forwarding (a)-(c)."Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege, as the document contains information solicited and received for the purpose of advising the President on the proposed appointees for the Commission, and the steps to be taken. Joint Defendants have not shown need for this document as they have not demonstrated that the document contains information that is directly relevant to issues expected to be central at trial.

15. PRA181-0323-0324 [CD 222]

"This document consists of a February 3, 2000 string of four emails discussing a proposed meeting requested by tobacco growers regarding tobacco issues and an asserted antitrust situation." Reed Decl. at 61; Gonzales Decl. Ex. A at 35. The emails are as follows: "(a) from Charles J. Payson to Cynthia A. Rice informing her of the request for a meeting, making a proposal as to how the request should be handled, and seeking further guidance about the requested meeting; (b) Ms. Rice to J. Eric Gould, forwarding (a); (c) Mr. Gould to Mr. Payson, Ms. Rice, and Thomas L. Freedman, responding to (a) and providing guidance as to what topics could appropriately be addressed at the requested meeting; and (d) Mr. Payson to Mr. Gould, Mr. Freedman, and Ms. Rice, responding to (c) and asking whether individuals in other Executive Branch agencies should be involved in the meeting." Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process privilege claim. Here, the email exchange discusses ideas and shares information regarding the proposed meeting and proposed action, and is deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any contribution of the government to an increase in smoking rates, nor does it promote or sponsor the growth of domestic tobacco abroad.

16. PRA181-0329-0331 [CD 224]

"This document is a string of seven emails discussing a meeting requested by tobacco growers regarding tobacco issues and an asserted antitrust situation. The first four-in-time emails are duplicates of the four emails described in Challenged Document #222." Reed Decl. at 61; Gonzales Decl. Ex. A at 35-36. "The other emails are as follows: (a) February 3, 2000, J. Eric Gould to Charles J. Payson, Cynthia A. Rice, and Thomas L. Freedman, responding to the email described as (d) in Challenged Document #222 and expressing his opinion as to whether and when other Executive Branch agencies should be brought into the loop; (b) February 14, 2000, Mr. Payson to Mr. Gould, Ms. Rice, and Mr. Freedman, following up on whether a decision has been made to hold the requested meeting and seeking guidance regarding a request by a tobacco grower related to the requested meeting; and (c) February 15, 2000, Mr. Gould to Mr. Payson, Mr. Freedman, and Ms. Rice, responding to (b) and providing requested guidance about the meeting." Id. at 61-62. Plaintiff claims the deliberative process privilege.

Consistent with the recommendation for Challenged Document 222, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 224, as it essentially is a continuation of the discussions of the earlier document. Also consistent with the earlier recommendation, the Special Master does not believe that Joint Defendants' purported need for this document outweighs Plaintiff's privilege interest.

17. PRA181-0453-0455 [CD 241]

"This document is an email string discussing the tobacco farmers commission." Reed Decl. at 62; Gonzales Decl. Ex. A at 36. The emails are as follows: "(a) September 6, 2000, John Winski to a large group of White House and OMB personnel transmitting for review and comment a draft Executive Order establishing the commission (the draft order is not part of this document) and noting a preliminary decision as to how the commission will be financed; (b) September 6, 2000, Andrea Kane to Christina S. Ho and Mary L. Smith, with a copy to Paul J. Weinstein, Jr., asking that Ms. Ho and Ms. Smith work with Mr. Winski on this matter; (c) September 7, 2000, Ms. Smith to Rosemary Hart and Paul Oetken, asking for a legal opinion on the draft Executive Order; (d) September 8, 2000, Ms. Hart to Ms. Smith and Mr. Oetken, responding to (c) with her legal opinion concerning the draft order and asking for clarification on two issues raised by the language of the draft order; (e) September 10, 2000, Ms. Smith to Mr. Winski, David W. Beier, Mr. Weinstein, Audrey T. Haynes, and Thomas L. Freedman, forwarding (d); and (f) September 19, 2000, Mr. Winski to Ms. Smith, with copies to Ms. Smith's other addressees, acknowledging (e) and stating that he will prepare a revised draft of the Executive Order for further clearance." Id. Plaintiff claims the deliberative process, attorney-client and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0455, which contains only a file name and an email recipient list and no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege claim for the remainder of the document, as it contains information solicited and received for the purpose of formulating advice for the President regarding the Tobacco Commission and a proposed Executive Order to be signed by the President. Similar to other documents discussed in this section that address the formulation of the Tobacco Commission, the Special Master does not believe that Joint Defendants have shown that these communications are directly relevant to a central issue in this case.¹⁹

19 Because the Special Master finds that the presidential communications privilege applies, there is no need to consider Plaintiff's claims of deliberative process privilege and attorney-client privilege.

18. PRA181-0460-0464 [CD 244]

"This document consists of three emails transmitting and discussing an attached memorandum and draft language for the proposed executive order on the tobacco farmers commission." Reed Decl. at 62; Gonzales Decl. Ex. A at 36. The emails are as follows: "(a) September 6, 2000, John Winski to Lee Ann Brackett and Bob J. Nash, which attaches and briefly addresses a memorandum from Charles Burson to Jacob Lew regarding the proposed executive order entitled `President's Commission on Providing Economic Opportunity in Tobacco-Dependent Communities and Protecting Public Health' (including Mr. Burson's analysis and recommendation), as well as the draft executive order; (b) September 6, 2000, Mr. Winski to Lauren A. Skryzowski, forwarding (a) and discussing Administration strategies on possible selection of candidates to serve on the commission and seeking comments on the attached draft executive order; and (c) September 6, 2000, Ms. Skryzowski to Mr. Winski, responding to (b)." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master believes that the presidential communications privilege applies to this document, which consists of a draft Executive Order to be signed by the President, a memorandum from the Vice President's Chief of Staff to the Director of the OMB, transmitting the proposed Executive Order, and email discussions of the Executive Order, all information solicited and received by immediate White House advisers for the purpose of advising the President. Joint Defendants' need does not outweigh the presumptively privileged status afforded by the presidential communications privilege, as they have not shown that this information is directly relevant to a central issue in this litigation.

19. PRA181-0469-0471 [CD 247]

"This document is an email string discussing the possible formation of a tobacco farmers commission." Reed Decl. at 63; Gonzales Decl. Ex. A at 36-37. The emails are as follows: "(a) September 5, 2000, Bruce N. Reed to Joshua Gotbaum, with copies to a group of White House and OMB personnel, responding to a note from Mr. Gotbaum that apparently requested Mr. Reed's view of the advisability of establishing the commission; (b) September 6, 2000, Andrea Kane to a group of White House and OMB personnel suggesting several areas of follow-up work to be done concerning this topic, including possible involvement by the Vice President, and offering her suggestions as to the wording of the proposed Executive Order establishing the commission; (c) September 6, 2000, John Winski to Ms. Kane, with copies to Ms. Kane's addressees, responding to (b) with an explanation concerning the nature of the draft document as to which Ms. Kane commented and offering his views concerning the matters raised by Ms. Kane; and (d) Christina S. Ho to Matthew Bennett, forwarding (a)-(c) and noting that Mr. Bennett will be involved in all further discussion on this matter." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0471, which contains only an email distribution list and no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege claim for pages 0469-0470, which contain information solicited and received by high-level presidential advisers for the purpose of preparing the Executive Order to present to the President. Joint Defendants have not shown need for this information as they have not demonstrated that discussions pertaining to the establishment of a Tobacco Commission are directly relevant to a central issue in this case.

20. PRA181-0472-0473 [CD 248]

"This document consists of two emails transmitting and discussing a draft executive order establishing the tobacco farmers commission: (a) September 6, 2000, Paul J. Weinstein, Jr. to Mary L. Smith, with copies to Thomas L. Freedman and Andrea Kane, transmitting a draft executive order created by John Winski and offering Mr. Weinstein's views on how this draft can be used for presidential decision-making on this issue; (b) September 6, 2000, Mr. Weinstein to Mr. Freedman and Ms. Smith, forwarding (a)." Reed Decl. at 63; Gonzales Decl. Ex. A at 37. Plaintiff claims the deliberative process and presidential communications privileges.

Similar to other documents in this section, the Special Master recommends that the Court sustain the presidential communications privilege for this document, which contains a draft Executive Order to be signed by the President, as well as the deliberations of EOP employees regarding that draft Executive Order and the potential formation of a Tobacco Commission. Joint Defendants have not shown need for this information as they have not demonstrated that discussions pertaining to the establishment of a Tobacco Commission are directly relevant to a central issue in this case.

21. PRA181-0474-0474 [CD 249]

"This document is a September 7, 2000 email from David J. Apol to Sarah Wilson providing his suggestions on the processes for clearing potential tobacco farmer commission members for service." Reed Decl. at 63; Gonzales Decl. Ex. A at 37. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege as this document contains Mr. Apol's suggestions and recommendation regarding the draft Executive Order to be signed by the President and therefore reflects information solicited and received by an immediate White House adviser — Ms. Wilson is Associate Counsel to the President — for the purpose of formulating advice for the President. Joint Defendants have not shown need for this information as they have not demonstrated that discussions pertaining to the establishment of a Tobacco Commission are directly relevant to a central issue in this case.

22. PRA181-0489-0497 [CD 253]

"This document consists of two emails transmitting an attached draft document entitled `Proposed Executive Order Establishing a Presidential Commission on Tobacco, Sustaining Southern Agriculture, and Protective Public Health:' (a) September 5, 2000, John Winski to Lee Ann Brackett; and (b) September 6, 2000 from Ms. Brackett to Joshua Gotbaum." Reed Decl. at 64; Gonzales Decl. Ex. A at 37. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0489, which contains non-substantive emails and a hex dump. The Special Master further recommends that the Court sustain the presidential communications privilege claim for pages 0490-0497, which contain information, in draft form, to be provided to high-level presidential advisers for the purpose of advising the President: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " The Special Master does not believe that Joint Defendants have shown need as they have not demonstrated that this information is directly relevant to a central issue in this litigation.

23. PRA181-0498-0509 [CD 254]

This document consists of three emails transmitting and discussing the draft document entitled `Proposed Executive Order Establishing a Presidential Commission on Tobacco, Sustaining Southern Agriculture, and Protective Public Health': (a) September 5, 2000, Lauren A. Skryzowski to John Winski, requesting a copy of the draft document; (b) September 5, 2000, Mr. Winski to Ms. Skryzowski, responding to (a) and providing the draft document; and (c) September 5, 2000, Ms. Skryzowski to Mr. Winski, thanking him for the draft document." Reed Decl. at 64; Gonzales Decl. Ex. A at 37. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0498, which contains only non-substantive emails. Pages 0499-0509 of this document are a duplicate of pages 0490-0497 of Challenged Document 253; consistent with the recommendation for Challenged Document 253, the Special Master recommends that the Court sustain the presidential communications privilege claim for pages 0499-0509, notwithstanding Joint Defendants' assertions of need.

24. PRA181-0537-0540 [CD 264]

"This document consists of three emails transmitting and discussing an attached document entitled `Tobacco Roundtable Discussion Between Tobacco Farmers and the Public Health Community,' that provides a preliminary proposal on a discussion between public health officials and tobacco growers in key tobacco states and provides a list of potential topics." Reed Decl. at 64; Gonzales Decl. Ex. A at 37. The emails are: "(a) July 12, 2000, J. Eric Gould to Matthew Bennett, attaching the draft paper and providing his characterization of that document as a proposal that is still being considered as well as advising that the proposal should be closely held; (b) July 17, 2000, Mr. Bennett to Mr. Gould, suggesting contacting a governor's office about this matter; and (c) July 17, 2000, Mr. Gould to Mr. Bennett, responding to (b)." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0537, which contains non-deliberative emails, and for page 0538, which contains only a hex dump. Pages 0539-0540 do qualify for the privilege as they contain a proposal for a tobacco roundtable discussion: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any contribution of the government to an increase in smoking rates, nor does it promote or sponsor the growth of domestic tobacco abroad.

25. PRA181-0565-0567 [CD 268]

"This document consists of two emails transmitting and discussing an attached document entitled `Tobacco Roundtable Discussion Between Tobacco Farmers and the Public Health Community,' that provides a preliminary proposal for a discussion between public health officials and tobacco growers in key tobacco states and provides a list of potential topics." Reed Decl. at 65; Gonzales Decl. Ex. A at 38. The emails are: "(a) July 5, 2000, Thomas L. Freedman to J. Eric Gould, seeking guidance as to his role concerning this issue; and (b) July 6, 2000, Mr. Gould to Mr. Freedman, with a copy to Andrea Kane, responding to (a) and offering his analysis and opinions concerning the state of the matter, including concerning issues that should and should not be addressed during the proposed discussion." Id. Plaintiff claims the deliberative process privilege.

Pages 0566-0567 contain the same proposal addressed directly above in Challenged Document 264; consistent with the recommendation for Challenged Document 264, the Special Master recommends that the Court sustain the deliberative process privilege claim for Challenged Document 268, which contains a duplicate of the proposal, as well as an email from Mr. Gould relating feedback he has received on the proposal and suggested next steps for action. Also consistent with the recommendation for Challenged Document 264, the Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege claim.

26. PRA181-0768-0770 [CD 287]

"This document is an October 12 and 13, 2000 email string further discussing the proposed Presidential tobacco farmers commission." Reed Decl. at 65; Gonzales Decl. Ex. A at 38. The emails are: (a) "David W. Beier to John Winski, with copies to Thomas L. Freedman, Mary L. Smith, Matthew Bennett, Andrea Kane, Christina S. Ho, and Barbara D. Woolley, requesting information regarding the Administration's plan and policies relating to notification of assignments to the tobacco commission;" (b) "Mr. Winski to Mr. Beier, with copies to Mr. Freedman, Ms. Smith, Ms. Kane, Ms. Ho, Ms. Woolley, Ronna Freiberg, Timothy P. Morningstar, and Emil J. Barth, providing information regarding assignments to the tobacco commission as well as information related to the Administration's proposed roll out plan for announcing appointments to the commission;" (c) "Ms. Ho to Joanne E. Slaney and Lisa M. Kountoupes, with copies to Mr. Winski and Ms. Kane, asking them to review (b) and offering her suggestions for amendments to Mr. Winski's roll-out plan;" (d) "Ms. Kountoupes to Ms. Ho, with copies to Ms. Slaney, Mr. Winski, Ms. Kane, and Mr. Morningstar, responding to (c) and offering her suggestions as to how to proceed with respect to dealing with one member of Congress;" and (e) "Mr. Morningstar to the other addressees, providing information concerning the Office of the Vice President's views with respect to a commission nominee supported by that member of Congress." Id. Plaintiff claims the deliberative process and presidential communications privileges.

These discussions are similar to those in the emails contained within Challenged Document 217. Consistent with the recommendation for Challenged Document 217, the Special Master recommends that the Court overrule the presidential communications privilege and sustain the claim of deliberative process privilege, notwithstanding Joint Defendants' asserted need.

27. PRA181-0852-0856 [CD 296]

This document is an email string from August, 2000 "discussing how to respond to a proposal made to the Vice President by Kentucky Gov. Patton for a tobacco farmer buyout." Reed Decl. at 66; Gonzales Decl. Ex. A at 38-39. The emails are: (a) "John Winski to Andrea Kane, providing a detailed background report on this matter, including an analysis of tobacco farmers' current status and likely attitude towards the proposed buyout, Philip Morris actions affecting tobacco farmers, and detailed arguments in support of and against the proposed buyout;" (b) "Ms. Kane to Matthew Bennett and Thomas L. Freedman, forwarding (a) and requesting their review and comment on the proposal, as well as seeking guidance as to whether to contact certain individuals outside the Executive Branch concerning the proposal;" (c) "Mr. Bennett to Ms. Kane, with a copy to Mr. Freedman, responding to (b) and offering his opinion on the question on whether to contact the persons outside the Executive Branch;" (d) "Ms. Kane to Mr. Winski, forwarding (b) and (c);" (e) "Mr. Winski to Ms. Kane, with copies to Mr. Bennett and Mr. Freedman, reporting on further information and reaction he has gathered with respect to the proposal;" (f) "Ms. Kane to Mr. Winski, with copies to Mr. Bennett, Mr. Freedman, and Christina S. Ho, reporting that Ms. Ho will be involved with this matter;" and (g) "Mr. Winski to Ms. Kane, with copies to Mr. Freedman, Ms. Ho, and Mr. Bennett, responding to (f)." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim. Here, the document contains information solicited for Vice President Gore in order to advise him on the issue of a tobacco buyout, which, as demonstrated by other documents in this section, is an issue on which the Vice President was advising the President. Joint Defendants have not established need to overcome the presumptively privileged status afforded this document, as they have not demonstrated that the document is directly relevant to a central issue in this case.

28. PRA181-0860-0864 [CD 297]

"This document is a December 18, 2000 email from Ripley Forbes to Christina S. Ho, transmitting, both in the email text and by separate attachment, a revised draft document entitled, `Tobacco Commission Principles,' that is part of a draft report relating to the Tobacco Commission. The document sets forth, in draft form, the principles that should guide the commission's activities." Reed Decl. at 66; Gonzales Decl. Ex. A at 39. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for these drafts, as they contain information solicited and received by presidential advisers in the course of formulating advice for the President on the proposed Tobacco Commission. Joint Defendants have not shown need for this document as they have not demonstrated that information pertaining to the Tobacco Commission is directly relevant to a central issue in this case.

29. PRA181-0927-0929 [CD 313]

"This document is an email string dated between February 3 and 15, 2000 concerning tobacco growers." Reed Decl. at 66; Gonzales Decl. Ex. A at 39. The emails are as follows: "(a) Charles J. Payson to Cynthia A. Rice, seeking guidance as to who should respond to a request from tobacco farmers for a meeting about certain tobaccorelated issues; (b) Ms. Rice to J. Eric Gould, forwarding (a); (c) Mr. Gould to Mr. Payson, with copies to Ms. Rice and Thomas L. Freedman, relating his discussion with a tobacco farmer organization official and advice given to him by White House Counsel as to what should be discussed at any meeting; (d) Mr. Payson to Mr. Gould, with copies to Mr. Freedman and Ms. Rice, responding to (c) and seeking further guidance as to who within the Executive Branch should be involved with this issue; (e) Mr. Gould to Mr. Payson, with copies to Mr. Freedman and Ms. Rice, responding to (d), including with respect to who should be involved in the discussions; (f) Mr. Payson to Mr. Gould, with copies to Ms. Rice and Mr. Freedman, asking about the status of the proposed meeting and seeking guidance as to whether a particular high-level Administration official should participate in the meeting; (g) Mr. Gould to Mr. Payson, responding to (f), including with respect to whether the high-level official should participate; (h) Mr. Payson to Mr. Gould, responding to (g); (i) Mr. Gould responding to Mr. Payson concerning the date for the meeting; and (j) Mr. Payson to Mr. Gould, responding to (i)." Id. at 66-67. Plaintiff claims the deliberative process privilege.

This document is a partial duplicate of CD 222. Consistent with the recommendation for Challenged Document 222, the Special Master recommends that the Court sustain the privilege claim, notwithstanding Joint Defendants' asserted need.

30. PRA181-0992-0992 [CD 329]

"This document is a March 17, 2000 email from J. Eric Gould to Eric P. Liu and Bruce N. Reed, with copies to Cathy Mays and Anna Richter, discussing the reasons for withdrawal of a proposed statement by the President on tobacco farmers." Reed Decl. at 67; Gonzales Decl. Ex. A at 39. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim, as the document addresses a presidential statement that was considered, but not issued. The email therefore reflects information that had been prepared for the purpose of advising the President, and it therefore is entitled to the presumptively privileged status afforded presidential communications. Joint Defendants have not established need for this information as they have not shown that these communications are directly relevant to a central issue in this lawsuit.

31. PRA181-1041-1042 [CD 338]

"This document is three emails discussing an attached March 9, 2000 draft `Statement by the President' concerning tobacco farmers: (a) March 14, 2000, J. Eric Gould to Keith Pitts, transmitting the draft statement and seeking guidance as to whether it should be used with an upcoming event; (b) March 15, 2000, Mr. Pitts to Mr. Gould, re-transmitting the draft statement with edits and providing background information concerning the tobacco growers' situation; and (c) January 15, 2000, Mr. Gould to Mr. Pitts, requesting information from Mr. Pitts to be used to decide whether to release the statement and asking about an upcoming statement by USDA Sec. Glickman." Reed Decl. at 67; Gonzales Decl. Ex. A at 39. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege, as this document contains a draft Statement by the President, and EOP discussions regarding use of the statement. It therefore reflects information solicited and received by presidential advisers in the course of formulating advice for the President, and qualifies for the presumptively privileged status afforded presidential communications. Joint Defendants have not shown need for this document as they have not demonstrated that this information is directly relevant to a central issue in this case.

32. PRA181-1049-1050 [CD 339]

"This document partly duplicates Challenged Document #338. It includes the first two emails and the attachment in #338, with this final email: March 16, 2000, Mr. Gould to Mr. Pitts, requesting that the USDA revise one sentence in the proposed statement." Reed Decl. at 67; Gonzales Decl. Ex. A at 39-40. Plaintiff claims the deliberative process and presidential communications privilege.

Consistent with the recommendation for Challenged Document 338, the Special Master recommends that the Court sustain the presidential communications privilege for Challenged Document 339, notwithstanding Joint Defendants' asserted need.

33. PRA181-1191-1193 [CD 357]

"This document is related to and partly duplicative of Challenged Document #338. It includes the first two emails and the attachment described in Challenged Document #338, with a different third email: March 15, 2000, J. Eric Gould to Thomas L. Freedman, forwarding the first two emails and the attached draft statement and requesting review of and comment on the draft statement, as well as suggesting an approach for possible release of the statement." Reed Decl. at 68; Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 1192, which contains only a hex dump. Consistent with the recommendation for Challenged Document 338, the Special Master further recommends that the Court sustain the presidential communications privilege claim for pages 1191 and 1193, notwithstanding Joint Defendants' asserted need.

34. PRA181-1206-1207 [CD 359]

"This document is a March 16, 2000 email from J. Eric Gould to Anna Richter, Eric P. Liu, Cathy Mays, and Bruce N. Reed, transmitting and discussing a draft `Statement by the President' concerning farmers, including tobacco farmers. In his email, Mr. Gould includes a statement of reasons for suggesting issuance of the proposed statement." Reed Decl. at 68; Gonzales Decl. Ex. A at 40. Plaintiff claims the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for this document, as it contains a draft Statement by the President, and an email comment regarding the draft Statement; therefore, it contains information solicited and received by presidential advisers for the purpose of formulating advice for the President regarding tobacco farmers. Joint Defendants have not shown need for this document as they have not demonstrated that this information is directly relevant to a central issue in this case.

35. PRA181-1393-1396 [CD 371]

"This document is an October 10, 2000 email from Margy Waller to a group of White House personnel forwarding a DPC Welfare Reform/Tobacco Team briefing paper for senior White House officials that discusses several issues, including tobacco — Federal lawsuit funding (not responsive) and legislation to aid burley tobacco growers." Reed Decl. at 68; Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 1393, which contains a non-substantive email and a hex dump. The Special Master further recommends that the Court overrule the claim of presidential communications privilege, as Plaintiff has not shown how these discussions among unnamed members of the Domestic Policy Council were for the purpose of formulating advice for the President. Rather, it appears that these were general policy deliberations among EOP employees, and they are deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any contribution of the government to an increase in smoking rates, nor does it promote or sponsor the growth of domestic tobacco abroad.

36. PRA181-2232-2234 [CD 446]

"This document is a duplicate of Challenged Document #208, with the addition of the following final email: October 5, 2000, Matthew Bennett to Andrea Kane, Christina S. Ho, John Winski, and Thomas L. Freedman, providing a report on and analysis of his conversations with officials from a state about the tobacco commission and related tobacco matters." Reed Decl. at 69; Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process and presidential communications privileges.

Consistent with the recommendation for Challenged Document 208, the Special Master recommends that the Court sustain the claim of presidential communications privilege for Challenged Document 446, notwithstanding Joint Defendants' asserted need.

37. PRA181-2362-2364 [CD 464]

"This document is a May 18, 2000 email from J. Eric Gould to Thomas L. Freedman, with a copy to Andrea Kane, transmitting and discussing briefly his draft of a proposal for a `Tobacco Roundtable Discussion between Tobacco Farmers and the Public Health Community' to be hosted by the President. The draft proposal sets forth various actions that could be taken by the President at and in connection with the proposed roundtable discussion." Reed Decl. at 69; Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege, as the document reflects information solicited and received by high-level presidential advisers in the course of formulating advice for the President: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Joint Defendants have not shown need for this document as they have not demonstrated that this information is directly relevant to a central issue in this case.

38. PRA181-2447-2449 [CD 477]

This document is an email string from October 2-5, 2000 discussing the tobacco farmers commission. The emails are as follows: (a) "John Winski to a large group of White House personnel, providing an update on topics concerning the commission, including actions that need to be taken by the White House; Mr. Winski includes a suggested list of additional members for the commission;" (b) "Christina S. Ho to Andrea Kane, forwarding (a) and asking about another tobacco-related idea that earlier was under consideration;" (c) "Ms. Kane to Ms. Ho, Mr. Winski, Thomas L. Freedman, and Matthew Bennett, responding to (b) and providing an explanation for that response;" and (d) "Mr. Winski to Ms. Kane, with copies to Ms. Ho, Mr. Freedman, and Mr. Bennett, responding to (c) and providing further information with respect to plans for that matter and the tobacco commission." Reed Decl. at 69; Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process and presidential communications privileges.

This email string is similar to other EOP discussions on the proposed Presidential Tobacco Commission. Accordingly, similar to earlier discussions on this issue, the Special Master recommends that the Court sustain the presidential communications privilege claim for this document, notwithstanding Joint Defendants' purported need.

H. Documents Relating to Tobacco and the Media

Ms. Brown explains that the documents in this category "were prepared as part of the Administration's efforts to determine how best to communicate with and through news organizations about tobacco and cancer research." Brown Decl. at 7.

1. PRA079-0342-0342 [CD 19]

This document consists of "two November 13, 1997 emails discussing preparing the Vice President for an upcoming interview with the Washington Post about tobacco: (a) Virginia M. Terzano to Jerold R. Mande and Toby Donenfeld, providing information about the focus of the upcoming interview and seeking additional information from Mr. Mande; and (b) Ms. Donenfeld to Mr. Mande, suggesting an approach for Mr. Mande with respect to obtaining information." Brown Decl. at 7; Gonzales Decl. Ex. A at 41. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege for this document, which discusses and requests information that the Vice President needed to prepare for an interview with a newspaper reporter. It does not contain information to be used by the Vice President to formulate advice for the President; rather, it is information to be used by the Vice President in communicating with the media. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.").

The Special Master further recommends that the deliberative process privilege claim be overruled, as the document does not appear to relate to the formulation of any policy decision, but to an interview with a newspaper reporter. "Implicit in the name of the privilege is the assumption that there must have been a process of decision-making, in which the information at issue played a role." Cobell v. Norton, 213 F.R.D. 1, 5 (D.D.C. 2003).

2. PRA079-0423-0423 [CD 33]

"This document is a January 27, 1998 email from Patricia M. Ewing to Ron Klain discussing the Administration's strategy for releasing information concerning cancer research. Ms. Ewing offers her suggestions and seeks Mr. Klain's guidance on this matter." Brown Decl. at 8-9; Gonzales Decl. Ex. A at 41. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege claim as Plaintiff has not shown that this email contains information solicited and received by high-level presidential advisers for the purpose of advising the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). The Special Master further recommends that the Court sustain the deliberative process privilege claim, as the decision of REDACTED REDACTED is a policy decision. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that this email relates to those contentions.

3. PRA079-0424-0424 [CD 34]

"This document is a January 27, 1998 email from Eli G. Attie to Toby Donenfeld forwarding an email of the same date from Ron Klain to Patricia M. Ewing, with a copy to Mr. Attie, relaying instructions for Ms. Ewing to be used in the continuing development of the Administration's strategy and plans for release of information concerning cancer research." Brown Decl. at 9; Gonzales Decl. Ex. A at 41. Plaintiff claims the deliberative process and presidential communications privileges.

This document addresses the same issues considered in Challenged Document 33. Consistent with the recommendation for Challenged Document 33, the Special Master recommends that the Court overrule the presidential communications privilege and sustain the deliberative process privilege claim, notwithstanding Joint Defendants' asserted need.

I. Documents From the Office of the U.S. Trade Representative

1. PRA181-0741-0743 [CD 284]

Mr. Veroneau explains that this document is a May 24, 2000 email from David Shark, then Deputy Assistant U.S. Trade Representative for Environment and Natural Resources, to employees in the Executive Branch "regarding a set of proposed Administration international tobacco control measures that are described in the message. The message provides USTR's views on the proposed measures generally and addresses a specific legal issue related of one [sic] the measures." Veroneau Decl. at 2. Plaintiff claims the deliberative process privilege.

The Special Master has reviewed the document and finds it to be deliberative and predecisonal in nature: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Moreover, Joint Defendants have not established need for this document inasmuch as they have claimed a need for communications addressing the government's encouragement of tobacco use abroad, and no such discussions are contained in this document.

2. PRA181-1660-1664 [CD 392]

This document is a March 31, 1998 email from Jan McAlpine to Sherman Boone requesting Mr. Boone to forward to another Executive Branch official a set of proposed questions and answers. Mr. Veroneau explains that "[a] `background' section in the attachment states that the questions and answers were for use in presenting the Administration's position regarding then-pending legislation related to tobacco exports and sales abroad." Veroneau Decl. at 2. Plaintiff has released the portion of the document quoting statutory language, and claims the deliberative process privilege for the remainder.

The Special Master recommends that the Court overrule the privilege claim for page 1660, which contains a non-deliberative email, and for page 1664, which contains only the email distribution path. The Special Master further recommends that the Court sustain the privilege claim for pages 1661-1663, which contain the proposed questions and answers; as a draft, the document reflects the opinions of EOP employees and not the policy of the Administration. Coastal States, 617 F.2d at 866. Joint Defendants have not established need for this document as their need arguments seek communications addressing the government's encouragement of tobacco use abroad and no such discussions are contained in this document.

3. PRA181-1794-1799 [CD 405]

This document is a March 20, 1998 email from Irving Williamson, USTR Deputy General Counsel, to Sherman Boone "transmitting a draft USTR paper that discusses legal issues and sets out discussion points for use in developing an Administration position on the international provisions of proposed omnibus tobacco legislation." Veroneau Decl. at 3. Plaintiff has released the draft legislative language on page 1799, and continues to maintain the deliberative process privilege for the remainder.

The Special Master recommends that the Court overrule the privilege claim for pages 1794-1795, which contain only a non-deliberative email. The Special Master does believe that pages 1796-1798 are protected by the privilege, as they explain a situation needing governmental action, propose two different options, and offer a recommendation for action. As such, they are deliberative and predecisional in nature. Joint Defendants have not established need for this document as their need arguments seek communications addressing the government's encouragement of tobacco use abroad and no such discussions are contained in this document.

J. Miscellaneous Documents

1. PRA079-0115-0119 [CD 6]

"This document is an email string with a large number of emails sent between January 8 and January 15, 1999 between J. Eric Gould and Jeff Cohen. (The earlier portion of the string is non-responsive, concerning a resume.) The emails discuss a possible source of tobacco information for the White House and the Executive Branch." Reed Decl. at 70; Gonzales Decl. Ex. A at 41. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim as Plaintiff has not shown that the emails are deliberative, nor have they demonstrated that the discussions relate to the creation of Administration policy. See Coastal States, 617 F.2d at 868 ("It is . . . clear that the agency has the burden of establishing what deliberative process is involved, and the role played by the documents in the course of that process.") (citing Vaughn, 523 F.2d at 1146).

2. PRA079-0129-0144 [CD 8]

This document consists of two October 8, 2000 emails, plus attachments. The first is from "Christina S. Ho to a large group of White House, OMB, and HHS officials and employees, discussing a draft Presidential statement possibly to be released in conjunction with a Surgeon General report on approaches to reducing tobacco use, to be released October 9 (the draft statement is not attached)." Reed Decl. at 70; Gonzales Decl. Ex. A at 41. The second is from "Bill Hall to Christina S. Ho and Andrea Kane, offering comments on the draft statement and attaching three draft documents from HHS: (i) `internal use only' questions and answers relating to `Reducing Tobacco Use: A Report of the Surgeon General;' (ii) CDC/OSH press release announcing the release of the Surgeon General report; and (iii) talking points/health messages to be used in conjunction with the upcoming release of the Surgeon General report." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. All the documents contained within Challenged Document 8 relate to the Surgeon General's report to be released the following day; they are not draft documents and instead address the published and soon-to-be-released Report. Therefore, they appear to relate to a published study and serve to explain the Administration's position regarding that study and are not deliberative or predecisional in nature.

3. PRA079-0221-0222 [CD 12]

Plaintiff has released a portion of this document and continues to claim the deliberative process privilege for "the first paragraph of a September 1, 1998 email from Daniel Mendelson to Adrienne Erbach and Sylvia Mathews reporting on the cancer clinical trials registry in the appropriations process and its relation to proposed tobacco legislation," which "discusses the Administration's legislative strategy concerning the cancer clinical trials and other Administration tobacco priorities." Locke Decl. at 50.

The portion Plaintiff claims privileged is contained on page 0221. Having reviewed the proposed redaction, the Special Master recommends that the Court overrule the privilege claim as the paragraph is factually informative and not deliberative in nature, and Plaintiff has not explained how this document relates to the creation of Administration policy.

4. PRA079-0379-0379 [CD 25]

"This document is a November 8, 1998 email from Sarah A. Bianchi to David W. Beier seeking information about and suggesting a course of action concerning an upcoming meeting to discuss proposed tobacco research funding." Brown Decl. at 8. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. The document addresses an upcoming meeting and NCI tobacco commitment; Plaintiff has not shown how the document is deliberative to any policymaking. See Paisley, 712 F.2d at 699 ("in most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed.").

5. PRA172-4282-4288 [CD 61]

"This document is a `new version' and an `old version' of an undated (but probably early 1999) document entitled `Tobacco Policies in the FY 2000 Budget.' The tobacco policies described in these draft documents are: (1) `Raising the Price of Cigarettes to Discourage Tobacco Use;' (2) `Re-Affirm Full FDA Authority to Regulate Tobacco Products;' (3) `Support Public Health Initiatives to Curb Tobacco Use;' (4) `Lawsuits to Recover Federal Health Care-Related Costs;' (5) `Protecting Farmers and Farming Communities;' and (6) `Claiming the Federal Share of State Tobacco Settlements.'" Reed Decl. at 70; Gonzales Decl. Ex. A at 42. Plaintiff claims the deliberative process privilege.

The Special Master believes that the documents qualify for the privilege as they are drafts and do not reflect the final Administration position. The Special Master does not believe that Joint Defendants have shown need for this document as they have access to any final budget policies, and as the information contained in these drafts relates to budgetary issues, and receipt and spending of federal tobacco revenues, which Joint Defendants have argued are relevant to their since-dismissed affirmative defenses.

6. PRA172-4503-4503 [CD 92]

"This document is a December 21, 1998 draft of `Tobacco Issues Raised by DPC,' listing five tobacco-related issues to be discussed." Reed Decl. at 71; Gonzales Decl. Ex. A at 42. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document as Plaintiff has not demonstrated how this document relates to the Administration's deliberative process; rather, it contains vague references to tobacco issues that are not deliberative in nature.

7. PRA181-0609-0610 [CD 273]

"This document is a December 1, 2000 email exchange between Christina S. Ho and Anna Richter concerning suggested edits to be made to the attached draft `Statement by the President' concerning a recently-released study showing the results of California's anti-smoking efforts on lung and bronchial cancer rates: (a) Ms. Ho, responding to Ms. Richter's earlier suggestion for a proposed change in the statement and providing her own suggestion for a further edit; and (b) Ms. Richter, responding to (a) and stating that they should await word from Bruce N. Reed concerning the statement." Reed Decl. at 71; Gonzales Decl. Ex. A at 42. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim for this document, as it contains a draft statement to be issued by the President, and his advisors' comments to the draft statement; it therefore contains information solicited and received by the President's advisors for the purpose of advising the President regarding a policy statement. The Special Master does not believe that Joint Defendants have shown need in that they have not demonstrated that this information is directly relevant to a central issue in this case.

8. PRA181-0735-0736 [CD 283]

"This document is two December 13, 2000 emails discussing an attached draft `Statement of the President' concerning the December 14, 2000 release of the 2000 Monitoring the Future survey: (a) Christina S. Ho to Vicki Rivas-Vazquez and Ripley Forbes, with copies to a group of OMB personnel, transmitting the draft statement and requesting review; and (b) Frank Seidl III to Ms. Ho, with copies to Thomas Reilly and Patrick Aylward, suggesting one change to the draft statement." Reed Decl. at 71; Gonzales Decl. Ex. A at 42. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. This document contains a draft statement to be issued by the President, as well as his advisors' comments on the draft; it therefore contains information solicited and received by presidential advisors for the purpose of advising the President on a future policy statement. The Special Master does not believe that Joint Defendants have shown need as they have not demonstrated that this information is directly relevant to a central issue in this case.

9. PRA181-0888-0890 [CD 300]

"This document is a June 27, 2000 email from Patrick Dorton to James R. Kvaal, Jason Furman, and Edwin C. Park transmitting and requesting review of and comment on an email of the same date from James T. Edmonds to a large group of White House personnel transmitting draft Presidential remarks to be made at a press conference the following day. The draft remarks include a brief mention of holding tobacco companies liable for the costs of tobacco." Reed Decl. at 71-72; Gonzales Decl. Ex. A at 42. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0890, which contains only an email distribution list. The Special Master further recommends that the Court sustain the presidential communications privilege claim for pages 0888-0889, which contain a draft statement to be given by the President, and seeks feedback from the recipients of the draft; it therefore contains information solicited and received by presidential advisors for the purpose of advising the President regarding a policy statement to be made the following day. Joint Defendants have not established need for this document as they have not shown that this information is directly relevant to a central issue in this case.

10. PRA181-0919-0920 [CD 309]

This document consists of four November 3, 1999 emails concerning several tobacco items. They are: "(a) Bill Hall to Cynthia A. Rice, with a copy to Melissa Skolfield, providing Ms. Rice with updates concerning an upcoming MMWR release on adult smokers, posting tobacco company documents on a website (and seeking guidance with respect to this), and activities by Ripley Forbes concerning Smoke Free Kids; (b) Ms. Rice to Mr. Hall, responding to (a), including discussing the issue with respect to which Mr. Hall sought her guidance and noting that further work is to be done on this issue; (c) Mr. Hall to Ms. Rice, with copies to Eugenia Chough, J. Eric Gould, and Ms. Skolfield, responding to (b) and further discussing one aspect of one issue discussed in the first two emails; and (d) Ms. Rice to Mr. Hall, with copies to Mr. Gould, Ms. Skolfield, and Ms. Chough, responding to (c) and providing her recommendation with respect to the issue discussed in (c)." Reed Decl. at 72; Gonzales Decl. Ex. A at 42-43. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these emails, which seek and provide policy guidance on an issue relating to posting tobacco documents on a website. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that the information contained in this document is relevant to Joint Defendants' asserted need.

11. PRA181-1098-1102 [CD 346]

This document consists of three emails and an attachment from April 12-13, 2000: (a) "Matthew Vaeth to J. Eric Gould, with a copy to Thomas Reilly, attaching and discussing problems related to a document containing information on the proposal by HHS for reprogramming certain funds in FY 2000 as a result of the March 21, 2000 Supreme Court ruling that FDA does not have the authority to regulate tobacco;" (b) "Mr. Gould to Bruce N. Reed, with copies to Andrea Kane, Anna Richter, and Cathy Mays, relating a discussion with Jeanne Lambrew about the HHS proposal, including suggestions concerning the proposed reprogramming of funds (both in FY 2000 and FY 2001);" and (c) "Anna Richter to Eric P. Liu, forwarding (a) and (b) as well as the attachment next described; and (d) a paper prepared by OMB for use at an upcoming meeting describing the HHS proposal for reprogramming the FDA funds, including the proposed uses and presenting two issues that must be resolved relating to this proposal." Reed Decl. at 72; Gonzales Decl. Ex. A at 43. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document contains government deliberations addressing what to do with funds that had been allocated to FDA for tobacco regulation in light of the Supreme Court's holding that FDA lacked the authority to regulate to regulate tobacco. The discussions are both deliberative and predecisional in nature. Having reviewed Joint Defendants' need arguments, the Special Master does not believe that these deliberations are relevant to their asserted need.

12. PRA181-2202-2203 [CD 441]

"This document two August 9, 2000 emails concerning a draft statement by the President on `Reducing Tobacco Use: A Report of the Surgeon General': (a) Anna Richter to Elliot J. Diringer, Adam L. Rosman, and Andrea Kane, with a copy to Alexander N. Gertsen, forwarding the draft statement (both in the email text and as an attachment); and (b) Mr. Gertsen to Anna Richter, requesting guidance as to when the statement could be released." Reed Decl. at 73; Gonzales Decl. Ex. A at 43. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege, as this document contains a draft statement to be issued by the President and was prepared by the President's advisors. Joint Defendants have not shown need for this document as they have not established that this information is directly relevant to a central issue in this case.

13. PRA181-2424-2424 [CD 473]

"This document is an October 5, 2000 email from Frank Seidl to Christina Ho, with copies to Barry T. Clendenin, Rodney G. Bent, Thomas Reilly, Michael Casella, Victoria Wachino, and Fredrick J. Charney, providing OMB's views/opinions concerning the proposed Framework Convention on Tobacco Control guidance, noting especially its concern about a position taken in the guidance with respect to one particular issue and suggesting a resolution for that concern." Locke Decl. at 50. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it contains predecisional deliberations regarding the FCTC and what the Administration's position should be. Joint Defendants have argued a need for governmental deliberations addressing efforts to encourage use of tobacco products abroad; no such need is found here as this email does not contain such discussions.

14. PRA181-2474-2475 [CD 481]

"This document is a March 14, 1996 email from Ellen S. Seidman to Elena Kagan, Jon Yarowsky, and James J. Jukes describing and discussing problems with proposed legislation (apparently concerning product liability), with only a passing mention of smoking." Reed Decl. at 73; Gonzales Decl. Ex. A at 43. Plaintiff claims the deliberative process, attorney-client and presidential communications privileges.

The Special Master recommends that the Court overrule the attorney-client privilege claim as Plaintiff has not shown that these communications were made for the purpose of securing legal advice. The Special Master further recommends that the Court overrule the presidential communications privilege as Plaintiff has not demonstrated that this email contains information solicited and received for the purpose of advising the President on policy issues. Instead, it appears that the deliberative process privilege applies as the document contains Ms. Seidman's personal and candid opinion regarding the proposed products liability litigation. This document is not relevant to any need asserted by Joint Defendants, particularly as tobacco is mentioned in passing as an example, and is not the topic of this discussion.

15. PRA181-2510-2511 [CD 486]

"This document is an August 7, 1995 email from Jill M. Blickstein to Jennifer O'Connor forwarding an August 6, 1995 email from Ms. Blickstein to Alice Rivlin, with copies to Jacob Lew, Allison H. Eydt, Nancy-Ann Min, James B. Macrae, Jr., and Daniel Chenok, forwarding comments of OMB's Office of Information and Regulatory Affairs on the Food and Drug Administration's draft proposed tobacco rule, to be used by Ms. Rivlin to prepare for an upcoming meeting. These comments include perceived problems with the rule and suggestions for possible changes to the rule." Locke Decl. at 51; Gonzales Decl. Ex. A at 20. Plaintiff claims the deliberative process and presidential communications privilege.

The Special Master recommends that the Court overrule the presidential communications privilege claim as Plaintiff has not shown that the information contained in this email was solicited and received by high-level presidential advisors for the purpose of formulating advice for the President, see In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."); rather, it is more appropriately protected by the deliberative process privilege as it contains opinions and recommendations provided to the Director (presumably of OMB) to prepare for a meeting. The discussion pertains to a draft FDA rule regarding regulation of cigarettes and smokeless tobacco products; the Special Master does not believe that the deliberations are relevant to any need asserted by Joint Defendants.

APPENDIX B

Name Position Abrams, Janet B. Adler, Devorah R. Alexander, Debra B. Anderson, Robert B. Anderson, Youngeun H. Angel, Eric S. Apol, David J. Attie, Eli G. Aylward, Patrick Bailey, Linda Balis, Ellen J. Barker, Robert Barreto, Brian R. Barshefsky, Charlene Barth, Emil Barth, Mary C. Bartholomew, Mark H. Beale, Scott Bagala, Paul E. Beier, David W. Beizer, Emily Benami, Jeremy D. Bennett, Matthew L. Benos, Deanne E. Bent, Rodney G. Berman, Elizabeth Bernard, Kenneth W. Bianchi, Sarah A. Blackwood, Ann Blank, Rebecca M. Blickstein, Jill M. Bobowick, Tracy A. Boone, Sherman G. Bosland, Julie T. Bowles, Erskine Brackett, Lee Ann Brain, Charles M. Braun, Steven N. Brennan, Timothy Bromberg, Emily Brophy, Susan A. Buchele, Libbie Burke, Dennis Burke, Kevin Burman, Len Burr, Pete Burson, Charles Bushmiller, Ann E. Cabrera, Alejandro G. Cahill, Steven E. Carver, Holly D. Casella, Michael Cash, Lester Casstevens, Kay Cerf, Christopher D. Charney, Frederick J. Chen, Yu Chin Chenok, Daniel J. Chitre, Nanda Chough, Eugenia Chow, Barbara Claxton, Gary Clendenin, Barry T. Cohen, Jeff Cohen, Michael Collins, Daniel P. Connelly, Hugh T. Corbett, William Corcoran, John H. III Corr, Bill Crisci, Michelle Crisci, Nicole C. Cumby, Robert Cusack, Paul J. Cutler, Lynn G. Dailard, Cynthia Dale, Suzanne Damus, Robert G. Daniel, Maurice Davis, Caroline B. Defilippo, C. Deich, Michael Diringer, Elliot J. Dixon, Monica M. Dobson, Sean R. Donenfeld, Toby Donohue, Mary Beth Donovan, Kate P. Dorton, Patrick M. Drye, Elizabeth Dudley, Jennifer D. Duncan, John D., Jr. Duncan, Sherron DuVal, Frederick J. Edlin, Aaron S. Edmonds, James T. Ehlers, Karl Ellis, Phil Emanuel, Rahm Emery, Jr., Richard P. Emmett, Laura Epstein, Joy Erbach, Adrienne Esquea, Jim R. Ewing, Lydia R. Ewing, Patricia Eydt, Allison H. Farkas, Jeffrey A. Fein, David B. Ferris, Christopher Finkelstein, Amy N. Fishburn, Burke Foley, Martha C. Forbes, Jeffrey A. Forbes, Ripley Forshey, Jennifer M. Fortuna, Diana Frankel, Jeffrey A. Frederickson, Caroline R. Freedman, Thomas L. Freiberg, Ronna Fuglie, Keith O. Funston, Robin Furman, Jason Gaines, Jeremy M. Galer, Ann M. Garufi, Marc Gehrke, Michael Gerardi, G. Gersten, Alexander N. Gips, Donald H. Glastris, Paul D. Glauber, Joe Glauthier, T.J. Glickman, Daniel Goldberg, Jason S Gore, Elizabeth Gotbaum, Joshua Gottheimer, Joshua Gould, J. Eric Graves, Janet Green, Julia R. Green, Melissa G. Gregoire, Courtney O. Gribben, John Grishkot, Vivian Gruber, Jonathan D. Guest, M. Haas, Lawrence J. Hale, John E. Hall, Bill Hall, H. Hanratty, Maria J. Harris, Jeffrey Hart, John P. Hart, Rosemary Hashemi, Cookab Haun, David J. Haverkamp, Jennifer R. Haynes, Audrey T. Helms, Robert D. Hernreich, Nancy V. Hilley, John Himler, Janet L. Ho, Christina S. Hohman, David Horwitz, Russell W. Hothem, Eric P. Hudak, Patricia M. Hunker, Mark Hunn, Eric W. Hurlburt, Heather M. Hustead, Toni A. Ibarra, Mickey Ickes, Harold Jacoby, Peter G. Jasso-Rotunno, Cynthia M. Jelsma, Carline Jennings, Christopher C. Johnson, Broderick Johnstone, Martha J. Jolin, Michele M. Jones, Ansley Jones, Ronald E. Jukes, James J. Kaeding, Patricia Kagan, Elena Kane, Andrea Kaplan, Jonathan A. Kasdin, Stuart R. Katzen, Sally Kessler, David A., MD Kieffer, Charles E. Keith, James R. Kho, Stephen Kilpatrick, Robert W. Kirchgraber, Katherine Kissinger, William Kitchen, John Klain, Ron Konigsberg, Charles Koop, C. Everett, MD Korneman, Sanders D. Kountoupes, Lisa M. Kullman, Karin Kvaal, James R. Lambert, Lynne Lambrew, Jeanne LaPlaca, Daniel Larson, Al Lehane, Christopher S. Lepard, B.J. Levine, Philip B. Lew, Jacob J. Lewis, Ann F. Lind, Susanne D. Lindsey, Bruce R. Liu, Eric P. Livingston, Brooke B. Locke, Patrick G. Lockhart, Joseph P. Long, Bruce D. Loy, Lisel Lucas, Sarah C. MacRae, James B., Jr. Maerkle, Frederick W. Majestic, Elizabeth Malanoski, Margaret A. Maldon, Alphonse J. Mallory, Lisa M. Mall, Amy Maloney, Sean P. Mande, Jerold R. Marabeti, Heather M. Marr, Charles R. Martin, Tanya E. Martinez, Irma L. Masket, Seth E. Mason, Keith Mathews, Sylvia Mayfield, Emory L. Mays, Cathy Mazur, Mark McAlpine, Jan McCaughey, Eileen P. McClellan, Mark McClelland, John McConnell, Bruce W. McCown, Gaynor R. McCurry, Michael D. McGee, Jennifer E. McGoldrick, Danny McGuire, Anne E. McHugh, Lorraine McKiernan, Kathy Mellody, April Mendelson, Daniel N. Miller, Mark E. Min, Nancy-Ann Minarik, Joseph J. Moffet, Julia Moloney, Megan C. Mooers, Gina C. Moore, Linda L. Moran, Kevin S. Morningstar, Timothy P. Morrison, David H. Mudge. Jonathan Munnell, Alicia H. Murguia, Janet Murr, James C. Nabors, Robert L. Nakagiri, Melany Nash, Bob J. New, Wendy C. Newman, Elizabeth Nolan, Beth Norwood, Douglas A. Novick, Robert T. Novotny, Dr. Thomas Oakman, Jeffrey O'Connor, Jennifer M. Oetken, Paul O'Hara, Jim O'Malley, Molly Orszag, Peter R. Palmieri, Jennifer M. Panetta, Leon Park, Edwin C. Pate, Lesley A. Patton, Devere R., Jr. Payson, Charles J. Pellicci, Robert J. Penn, Mark Perrelli, Thomas J. Peterson, Eric Peterson, Ronald K. Philhower, Gene Pitcher, Matthew W. Pitkin, Douglas Pitts, Keith Pizzuto, Jill M. Podesta, John Prince, Jonathan M. Quinn, Laura M. Rabner, Nicole R. Raines, Franklin D. Rasco, Carol H. Ratcliff, Melissa B. Reber, Sarah J. Redburn, Francis S. Reed, Bruce N. Reich, Brian A. Reich, Steven Reilly, Thomas Rettman, Rosalyn J. Ricci, Linda Rice, Cynthia A. Richter, Anna Rivas-Vazquez, Vicki Rivlin, Alice Robyn, Dorothy Rose, Danielle F. Rosen, Daniel H. Rosman, Adam L. Rosshirt, Thomas M. Rossman, Elizabeth L. Rudd, Jeremy B. Ruhm, Christopher J. Rustique, Virginia N. Sacks, Richard S. Sagurton, Edwin W. Sakol, Jodi R. Sandage, John Sandill, Ravi K. Santesteban, Cristian J. Satterfield, Lee Schechter, Jason H. Scholtz, Karl Schmidt, Christine Schnur, Jonathan H. Schroeder, Ingrid M. Scott, Andrew J. Scully, Christopher K. Seidl, III, Frank J. Seidlitz, Joseph E. Seidman, Ellen S. Shalala, Donna Shamir, Ruby Shapiro, Hal Scott Shark, David Sheketoff, Emily Shesol, Jeffrey Shima, Van-Allen H. Shimabukuro, Leanne Siewert, Jake Silverman, Joshua Simon, Leslie Skolfield, Melissa Skryzowski, Lauren A. Slaney, Joanne A. Smith, Cynthia M. Smith, Jeffrey M. Smith, Mary L. Solano, Silvana Soto, Maria E. Sperling, Gene Stanley, Frank W. Steel, Brian W. Stern, Todd Stigile, Arthur W. Stone, Charles F. Summers, Lawrence Sunding, David L. Suntum, M. Sutton, John O. Tamagni, Jordan Tanden, Neera Tarplin, Rich Tate, Daniel C. Taylor, Dan J. Taylor, Wendy A. Terzano, Virginia M. Tesler, Shana E. Thomas, Amal Thomas, David R. Thompson, John E. Thornell, Paul Toiv, Barry J. Treadway, James Michael Tuchmann, Paul A. Tumlinson, Anne E. Turman, Richard J. Vaeth, Matthew Valdez, Mary Lou Via, Sandra Wachino, Victoria A. Waldman, Michael Walker, Christopher F. Waller, Margy Walters, Suzanne G. Wanken, Christopher M. Warren, Wesley P. Wasserman, Mark A. Watney, Chris J. Weatherly, Kathy Weinstein, Paul J., Jr. Weiss, Amy Weiss, Lowell A. West, Ophelia D. White, William G. White, William H., Jr. Wilcox, David Williamson, Irving Wilson, Sarah Winograd, Morley Winski, John Woollen, Dawn V. Woolley, Barbara D. Yager, Marilyn Yanowitch, Paul Yarowsky, Jon Yellen, Janet L. Zeller, Mitch

WHO employee, EOP Assistant Director for Health Policy, DPC Director, Presidential Letters, Staff Secretary, WHO, EOP Economist, Economic Policy, OMB EOP employee WHO employee, EOP WHO employee, EOP Office of Deputy Chief of Staff for Communications, OVP Program Examiner, Health/Personnel, OMB CDC, HHS employee Financial Economist, Budget Analysis and Systems, Budget Review, OMB Chief, Budget Review Branch, Budget Review, OMB, EOP Deputy Chief of Staff, National Economic Council, EOP United States Trade Representative, USTR, EOP OMB employee, EOP Financial Economist, Budget Analysis and Systems, Budget Review, OMB Computer Specialist, Applications Development and Support, Office of Administration, EOP WHO employee, EOP Counselor to the President, Chief of Staff, WHO, EOP Chief Domestic Policy Advisor for the Vice President, OVP USTR employee, EOP WHO employee, EOP Special Assistant for Intergovernmental Affairs, WHO, EOP DPC, EOP Chief, Economic Affairs Branch, National Security and International Affairs, OMB, EOP WHO employee, EOP Special Advisor to the Assistant to the President for National Security Affairs, NSC, EOP Office of the Chief Domestic Policy Advisor to the Vice President, OVP Department of State employee Chief Economist, Council of Economic Advisors, EOP Program Examiner, Director's Office, OMB WHO employee, EOP Director, International Economic Council, EOP Assistant Director of Presidential Scheduling, Scheduling, WHO, EOP White House Chief of Staff Office of Senior Policy Advisor for the Vice President, National Partnership for Reinventing Government, OVP, EOP Deputy Assistant to the President for Legislative Affairs (House), Legislative Affairs, WHO, EOP Director of Macroeconomic Forecasting, Council of Economic Advisor, EOP Senior Economist, Council of Economic Advisors, EOP Special Assistant to the President and Deputy Director of Intergovernmental Affairs, Intergovernmental Affairs, EOP Deputy Assistant to the President and Deputy Director of Legislative Affairs, Legislative Affairs, EOP Office of the Secretary, HHS Senior Policy Analyst, DPC, EOP HHS employee Treasury Department employee Foreign Agricultural Service, USDA Chief of Staff and Counselor to the Vice President, OVP, EOP Associate Counsel to the President, WHO, EOP Office of the Communications Director, OVP, EOP Policy Analyst, Budget Analysis and Systems, Budget Review, OMP, EOP Special Assistant to the Director, Public Liaison, WHO, EOP Chief, Economic Affairs Branch, National Security and International Affairs, OMB, EOP Chief, Science and Regulatory Affairs Branch, Office of the Assistant Secretary for Management and Budget, HHS Director of Legislative Affairs for the Vice President, OVP Associate Counsel to the President, WHO, EOP Policy Analyst, Federal Financial Management, OMB, EOP Council of Economic Advisors, EOP Policy Analyst, Office of Information and Regulatory Affairs, OMB, EOP Assistant Press Secretary, WHO, EOP Assistant Director for Domestic Policy, DPC, EOP Associate Director, Education, Income Maintenance, and Labor Division, OMB, EOP HHS Assistant Secretary for Planning and Evaluation Deputy Associate Director, Health/Personnel, OMB, EOP WHO employee, EOP Special Assistant to the President for Education Policy, DPC, EOP Associate Director of Research, Strategic Planning and Communications, Chief of Staff, WHO, EOP Deputy Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB, EOP Director of Telecommunication, Industry, USTR, EOP WHO employee, EOP HHS employee Assistant to the Senior Advisor, Chief of Staff, WHO, EOP WHO employee, EOP Office of Economic Policy, Treasury Department Executive Assistant to the Vice President, OVP, EOP Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, EOP Associate Director for Domestic Policy, DPC, EOP Executive Assistant, Intergovernmental Affairs, WHO, EOP General Counsel, OMB, EOP Political Director, Chief of Staff and Administration OVP, EOP Program Examiner, Health/Personnel, OMB, EOP U.S. International Trade Commission Associate Director, General Government and Finance, OMB, EOP Associate Director for Communications, Council on Environmental Quality, EOP Deputy Chief of Staff, Office of the Vice President, OVP, EOP Advisor for Communications and Strategy, DPC, EOP Office of the Chief Domestic Policy Advisor for the Vice President, OVP WHO employee, EOP Staff Assistant, Legislative Affairs, OMB, EOP Special Assistant to the President and Communications Director, NEC, OPD Chief of Staff, DPC, EOP Special Assistant, Counsel to the President, WHO, EOP Special Advisor on International Economic Policy and Counselor, National Security Council, EOP Program Assistant, General Government and Finance, OMB, EOP Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, White House Senior Economist, Council of Economic Advisors, EOP Special Assistant to the President and Presidential Speechwriter, Communications, WHO, EOP Office of U.S. Trade Representative, EOP Treasury employee, Office of Economic Policy Senior Advisor to the President for Policy and Strategy and Executive Assistant to the Chief of Staff, WHO, EOP Assistant Director, Budget review, OMB, EOP Policy Assistant, DPC, EOP Office of the Secretary, Public Health Service, HHS Senior Advisor to the Deputy Director, OMB, EOP Program Examiner, Health/Personnel, OMB, EOP Office of the Deputy Director of Scheduling, OVP, EOP Deputy Chief of Staff for Communications, OVP, EOP Policy Analyst, OIRA, OMB, EOP Program Examiner, Health/Personnel, OMB, EOP Associate Counsel to the President, Office of the Counsel to the President, WHO, EOP Public Affairs Specialist, Communications, OMB, EOP Council of Economic Advisors, EOP DPC, EOP Senior Legislative Counsel, Legislative Affairs, WHO, EOP Deputy Assistant to the President and Deputy Director of Scheduling, WHO, EOP Office of the Secretary, HHS Program Examiner, Health/Personnel, OMB Associate Director for Welfare Reform, DPC, EOP Member, Council of Economic Advisors, EOP Special Assistant to the President for Legislative Affairs, Legislative Affairs, WHO, EOP Deputy Assistant to the President for Domestic Policy, DPC, EOP Director of Legislative Affairs for the Vice President, OVP, EOP Senior Economist, Council of Economic Advisors, EOP Office of Budget, ASMB, EOP Staff Economist, Council of economic Advisors, EOP Deputy Director of Press Advance, Press Secretary, WHO, EOP WHO employee, EOP Program Examiner, Health/Personnel, OMB, EOP WHO employee, EOP Treasury Department employee WHO employee, EOP Deputy Chief of Staff for Communications, OVP, EOP Special Assistant to the President and Presidential Speechwriter, Speechwriting, Communications, WHO, EOP Chief Economist, USDA Associate Director, Natural Resources, Energy, and Science, OMB, EOP Secretary, USDA Special Assistant to the Chief of Staff, WHO, EOP Special Assistant for Policy and Legislation, Legislative Affairs, OMB, EOP Executive Associate Director, OMB, EOP Staff Director, Speechwriting, Cabinet Affairs, WHO, EOP Associate Director for Domestic Policy, DPC, EOP Administrative Advisor, Office of the Director, OMB, EOP Regional Media Coordinator, Press Secretary, WHO, EOP Special Assistant, National Economic Council, OPD DPC, EOP Writer/Editor, Communications, OMB, EOP WHO, EOP employee Deputy Assistant Secretary, Treasury; later a consultant to the Administration Department of State employee Communications Director for the Vice President, OVP, EOP Policy Analyst, Office of National Drug Control Policy, EOP HHS employee U.S. International Trade Commission Council of Economic Advisors, EOP Consultant, VA Deputy Assistant to the President for Intergovernmental Affairs, WHO, EOP Office of Legal Counsel, Department of Justice WHO employee, EOP Chief, Justice Branch, General Government and Finance, OMB, EOP Assistant U.S. Trade Representative for Environment and Natural Resources, USTR, EOP Special Counsel to the Vice President and Chief of Staff to Mrs. Gore, OVP, EOP Branch Chief, Procurement, General Services Division, Office of Administration, EOP Deputy Assistant to the President and Director of Oval Office Operations, WHO, EOP Senior Advisor to the President and Assistant to the President for Legislative Affairs, WHO, EOP Program Examiner, Human Resources, OMB, EOP Assistant Director for Domestic Policy, DPC, EOP HHS employee Special Assistant, National Economic Council, EOP Special Assistant to the First Lady, WHO, EOP Department of State employee WHO employee, EOP OMB employee, EOP WHO employee, EOP Chief, Veterans Affairs Branch, Health/Personnel, OMB Assistant to the President and Director of Governmental Affairs, WHO, White House Assistant to the President, Deputy Chief of Staff, WHO, EOP Special Assistant to the President and Senior Legislative Counsel for Legislative Affairs, Legislative Affairs, WHO, EOP Chief of Staff of Political Affairs, WHO, EOP Policy Analyst, Natural Resources, Energy and Science, OMB, EOP Deputy Assistant to the President for Health Policy, DPC, White House Special Assistant to the President for Legislative Affairs, WHO, EOP DPC, EOP Chief of Staff, Council of Economic Advisors, EOP Public Liaison, Chief of Staff and Administration, OVP, EOP Legislative Analyst, Economics, OMB, EOP Assistant Director, Legislative Reference, OMB, EOP Associate Chief Counsel, FDA, HHS Deputy Assistant to the President for Domestic Policy, DPC, EOP Associate Director for Domestic Policy, DPC, EOP Chief of Staff, National Economic Council, OPD, EOP Program Examiner, Natural Resources, Energy, and Science, OMB, EOP Deputy Assistant to the President for Economic Policy and Deputy Director, National Economic Council, OPD, EOP Commissioner, FDA, HHS Acting Associate Director, Legislative Affairs, OMB, EOP Director, Asian Affairs, NSC, EOP Law Clerk, Monitoring and Enforcement, USTR, EOP Financial Analyst, Budget Analysis and Systems, Budget Review, OMB, EOP Program Examiner, Health/Personnel, OMB DPC, EOP Treasury Department employee Chief of Staff, OVP Assistant Director for Legislative Affairs, OMB, EOP Surgeon General, Public Health Service, HHS Council of Economic Advisors, EOP Special Assistant to the President for Legislative Affairs, WHO, EOP Assistant Director of Presidential Scheduling, Scheduling, WHO, EOP WHO employee, EOP IO/T, Department of State Senior Health Policy Analyst, National Economic Council, EOP Program Examiner, VA/Personnel, OMB USTR, EOP Office of the Deputy Chief of Staff for Communications, OVP, EOP Consultant to the White House Senior Economist, Council of Economic Advisors, EOP Director, OMB, EOP Assistant to the President and Director of Communications, WHO, EOP Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB, EOP Assistant to the President and Deputy Counsel, WHO, EOP Deputy Assistant to the President for Domestic Policy, DPC, EOP Legislative Analyst, Legislative Affairs, OMB, EOP Policy Analyst, Budget Analysis Branch, Budget Review Division, OMB, EOP Assistant to the President and White House Press Secretary, WHO, EOP Deputy Associate Director, VA, Health/Personnel, OMB, EOP WHO employee, EOP DPC, EOP Deputy Administrator, ORRA, OMB, EOP ITA, Department of Commerce Centers for Disease Control, HHS Policy Analyst, Office of Information and Regulatory Affairs, OMB, EOP Deputy Assistant to the President for Legislative Affairs, WHO, EOP OVP employee, EOP DPC, EOP HHS employee Office of Science and Technology Policy detailed to Office of Vice President Special Assistant to the President and Associate Director, Presidential Personnel, WHO, EOP Senior Advisor for Budget Policy, National Economic Council, OPD Associate Director for Education and Policy Planning, DPC, EOP Special Assistant to the Cabinet Secretary, WHO, EOP Writer, Presidential Letters, Staff Secretary, WHO, EOP USTR, EOP Deputy Director, OMB, EOP Special Assistant to the Deputy Director, Intergovernmental Affairs, WHO, EOP Executive Assistant to the Director, DPC, EOP Senior Director, National Economic Council, EOP Director for Multilateral Trade and Environmental Policy, USTR HHS employee Economic Policy, Treasury Treasury employee Chief, Information Policy and Technology Branch, Office of Information and Regulatory Affairs, OMB, EOP Senior Policy Analyst, DPC, EOP Press Secretary, WHO, EOP Duty Officer, NSC, EOP HHS employee Special Assistant to the President for Cabinet Affairs, WHO, EOP Deputy Assistant to the President and Deputy Press Secretary for Media Affairs and Operations, Press Secretary, WHO, EOP Assistant Press Secretary, WHO, EOP Assistant Press Secretary, WHO, EOP Associate Director, Health/Personnel, OMB, EOP Chief, Health Financing, Health/Personnel, OMB, EOP Associate Director for Health and Personnel, OMB, EOP Associate Director, Economic Policy, OMB, EOP Associate Director of Planning, Chief of Staff, WHO, EOP Director of Radio Services, Press Secretary, WHO, EOP Executive Assistant, Health/Personnel, OMB, EOP Deputy Assistant to the President and Deputy Director of Political Affairs, WHO, EOP Special Assistant to the Chief of Staff, WHO, EOP Staff Assistant to the Deputy Chief of Staff, OVP, EOP Deputy Associate Director, National Security, National Security and International Affairs, OMB, EOP Department of State employee Member, Council of Economic Advisors, EOP Deputy Assistant to the President and Deputy Director of Legislative Affairs, WHO, EOP Assistant Director, Legislative Reference Division, OMB, EOP Senior Advisor to the Director, OMB, EOP Program Examiner, Health/Personnel, OMB, EOP WHO employee, EOP Executive Assistant to the Vice President, OVP, EOP Special Assistant to the Press Secretary, WHO, EOP Counsel to the President Fiscal Economist, Budget Analysis and Systems, Budget Review, OMB, EOP Counselor to the USTR, USTR, EOP Assistant Surgeon General, Deputy Assistant Secretary for International and Refugee Health, HHS WHO employee, EOP Special Assistant to the President, Office of the Chief of Staff, WHO, EOP WHO employee, EOP HHS employee Confidential Assistant, Health Care Services, OMB, EOP Senior Economic Adviser, National Economic Council, EOP Deputy Assistant to the President and Deputy Press Secretary for Operations, WHO, EOP Chief of Staff, WHO, EOP DPC, EOP DPC, EOP Project Manager, Information Systems and Technology Division, Office of Administration, EOP Assistant Director for Presidential Scheduling, WHO, EOP Legislative Analyst, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB, EOP Consultant to the White House Assistant to the Attorney General, Office of the Attorney General, Department of Justice CDC, HHS Chief, Resources, Defenses, International Branch, Legislative Affairs, OMB, EOP Foreign Agricultural Service, USDA Writer, Presidential Letters, Staff Secretary, WHO, EOP Program Examiner, Transportation, Commerce, Justice, and Services, General Government and Finance, OMB, EOP USDA employee Confidential Assistant, Human Resources, OMB, EOP Chief of Staff, WHO, EOP National Security Council, EOP OVP, EOP Associate Director for Domestic Policy, DPC, EOP Director, OMB, EOP Assistant to the Director for Domestic Policy and Director, DPC, EOP Office of the Deputy Chief of Staff for Communications, OVP, EOP Research Assistant, Council of Economic Advisors, EOP Chief, Housing Branch, General Government and Finance, OMB, EOP Assistant to the President for Domestic Policy and Director, DPC OVP, EOP Senior Associate Counsel to the President Chief, Health and Human Services Branch, Health/Personnel, OMB, EOP Associate General Counsel for Budget, Office of General Counsel, OMB, EOP Associate Director, Communications, OMB, EOP Special Assistant to the President for Domestic Policy, DPC, EOP Assistant Director for Domestic Policy, DPC, EOP HHS employee, Office of the Secretary Director, OMB, EOP Special Assistant to the President for Economic Policy, National Economic Council, EOP WHO employee, EOP WHO employee, EOP WHO employee, EOP Office of the Deputy Chief of Staff, Communications, OVP, EOP Budget Preparations Specialist, Budget Review, OMB, EOP Senior Economist, Council of Economic Advisors, EOP Senior Economist, Council of Economic Advisors, EOP Special Assistant for Presidential Relations, Legislative Affairs, WHO, EOP Treasury Department employee USTR, EOP Office of the Communications Director for the Vice President, OVP, EOP Office of Legal Advisor, Department of State Council of Economic Advisors, EOP Staff Economist, Council of Economic Advisors, EOP Special Assistant to the President and Staff Director, Public Liaison, WHO, EOP Lower Press Office Manager, Press Secretary, WHO, EOP Treasury Department employee HHS employee Associate Director for Education Policy, DPC, OPD, EOP Legislative Analyst, Economics, Science, General Government and Finance, OMB, EOP Program Examiner, Health/Personnel, OMB, EOP Senior Writer, Presidential Letters, Staff Secretary, WHO, EOP Program Examiner, Health/Personnel, OMB, EOP Council of Economic Advisor, EOP Special Assistant to the President for Economic Policy, National Economic Council, Office of Policy Development, EOP Secretary, HHS Special Assistant to the Director of Communications, WHO, EOP Senior Advisor for International Economic Policy and Senior Counselor to the Director, OPD, EOP USTR, EOP Labor employee WHO employee, EOP WHO employee, EOP Associate Director for Domestic Policy, DPC, EOP Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Assistant Press Secretary, WHO, EOP Office of General Counsel, Department of Commerce CDC, HHS WHO employee, EOP Special Assistant to the President for Legislative Affairs, WHO, EOP Program Examiner, Health/Personnel, OMB, EOP Executive Assistant to the Director for Policy and International Affairs, OSTP, EOP Associate Director for Policy Planning, DPC, EOP OMB employee, EOP Special Assistant to the Director, Intergovernmental Affairs, WHO, EOP Director, National Economic Council, OPD WHO employee, EOP OVP, EOP Assistant to the President for Special Projects, WHO, EOP Financial Economist, Budget Analysis and Systems, Budget Review, OMB, EOP Chief Economist, Council of Economic Advisors, EOP Secretary, Treasury Senior Economist, Council of Economic Advisors, EOP WHO employee, EOP OMB employee, EOP Special Assistant to the President and Presidential Speechwriter, Speechwriting, Communications, WHO, EOP Associate Director for Domestic Policy, DPC, EOP Treasury employee Special Assistant for Legislative Affairs, WHO, EOP Office of the Chief Domestic Policy Adviser for the Vice President, OVP, EOP Policy Analyst, Office of Information and Regulatory Affairs, OMB Press Secretary, OVP, EOP Staff Assistant, Chief of Staff, WHO, EOP Office of the Secretary, HHS Deputy Director, Legislative Affairs, OVP, EOP Program Examiner, Justice Branch, Transportation, Commerce, Justice, and Services Division, OMB, EOP Office of the Director of Legislative Affairs for the Vice President, OVP, EOP Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Consulting Editor, Council of Economic Advisors, EOP Office of the Political Director, Chief of Staff, OVP, EOP Program Examiner, Health/Personnel, OMB, EOP Chief, Health Programs and Services, Health/Personnel, OMB, EOP Program Examiner, Health/Personnel, OMB, EOP Office of the Secretary, Public Health Service, HHS Executive Assistant, Office of the Director, OMB, EOP Senior Adviser, Office of the Director, OMB, EOP Assistant to the President and Director of Speechwriting, Communications, WHO, EOP Special Assistant to the Director and Director of Congressional Correspondence and Messages, Legislative Affairs, WHO, EOP Associate Director and Senior Advisor for Welfare and Working Families, DPC DPC, EOP DPC, EOP Chief of Staff, Council on Economic Quality, EOP International Economist, Economic Policy, OMB Department of Justice employee Office of the Director of Correspondence for the Vice President, OVP, EOP Special Assistant to the President for Domestic Policy and Chief of Staff, DPC, EOP Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Special Assistant to the President and Presidential Speechwriter, WHO, EOP Administrative Support Assistant, Economic Policy, OMB, EOP Program Examiner, Health/Personnel, OMB, EOP Special Assistant to the President for Intergovernmental Affairs, WHO, EOP Treasury employee Deputy General Counsel, USTR, EOP Associate Counsel to the President, WHO, EOP Senior Policy Advisor for the Vice President, OVP, EOP OVP, EOP Confidential Assistant to Executive Associate Director, OMB, EOP Special Assistant to the President and Associate Director, Public Liaison, WHO, EOP Deputy Assistant to the President and Deputy Director for Public Liaison, WHO, EOP Department of Justice employee WHO employee, EOP Chair, Council of Economic Advisors, EOP Director, Office of Tobacco Programs, FDA, HHS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

-------------------------------- UNITED STATES OF AMERICA, ) ) Plaintiff, ) Civil Action No. 99-CV-2496 (GK) ) v. ) ) PHILIP MORRIS USA, INC., f/k/a ) PHILIP MORRIS INC., et al. ) ) Defendants. ) --------------------------------

ORDER # _____

Before this Court is Report and Recommendation # 170 of the Special Master. Upon consideration of Report and Recommendation # 170, and there being no objection thereto, it is this ______ day of _______________, 2004:

ORDERED that Report and Recommendation # 170 of the Special Master be and hereby is adopted; and it is

FURTHER ORDERED that Joint Defendants' Fifth Motion to Compel Certain Documents Listed on Plaintiff's Executive Office of the President and Presidential Records Act Privilege Logs be and hereby is granted in part and denied in part; and it is

FURTHER ORDERED that Plaintiff's privilege claims with respect to the following Challenged Documents be and hereby are deemed waived:

PRA079-0013 [CD 1] PRA079-0029 [CD 3] PRA079-0011-0013 [CD 4] PRA079-0114 [CD 5] PRA079-0156-0159 [CD 9] PRA079-0167 [CD 10] PRA079-0275-0277 [CD 15] PRA079-0344 [CD 21] PRA079-0348 [CD 22] PRA079-0352 [CD 23] PRA079-0390 [CD 27] PRA079-0396 [CD 29] PRA079-0406 [CD 32] PRA172-4086-4087 [CD 37] PRA172-4402 [CD 70] PRA172-4847 [CD 146] PRA172-4860 [CD 147] PRA172-4861 [CD 148] PRA172-4876-4877 [CD 151] PRA181-0001-0002 [CD 203] PRA181-0534-0536 [CD 263] PRA181-0795-0796 [CD 293] PRA181-1040 [CD 337] PRA181-1372-1373 [CD 367] PRA181-1670-1674 [CD 393] PRA181-1728-1731 [CD 396] PRA181-2176 [CD 437] PRA181-2347 [CD 461]

and it is

FURTHER ORDERED that Plaintiff's claims of deliberative process privilege be and hereby are sustained with respect to the following pages of the following Challenged Documents:

PRA079-0214-0215 (in part per RR # 170) [CD 7] PRA079-0234 [CD 14] PRA079-0278-0279 [CD 16] PRA079-0312-0313 [CD 18] PRA079-0377 [CD 24] PRA079-0397 [CD 30] PRA079-0423 [CD 33] PRA079-0424 [CD 34] PRA172-4090-4094 [CD 38] PRA172-4096-4100 [CD 39] PRA172-4101-4102 [CD 40] PRA172-4103; 4105-4106 [CD 41] PRA172-4107-4113 [CD 42] PRA172-4114 [CD 43] PRA172-4116 [CD 44] PRA172-4154-4155 [CD 48] PRA172-4172-4176 [CD 49] PRA172-4177 [CD 50] PRA172-4178 [CD 51] PRA172-4179-4183 [CD 52] PRA172-4186 [CD 53] PRA172-4187-4193 [CD 54] PRA172-4223-4224 [CD 55] PRA172-4258-4260 [CD 58] PRA172-4274-4277 [CD 59] PRA172-4280-4281 [CD 60] PRA172-4282-4288 [CD 61] PRA172-4335 [CD 62] PRA172-4348-4349 [CD 63] PRA172-4358-4360 [CD 64] PRA172-4368-4380 [CD 65] PRA172-4381-4386 [CD 66] PRA172-4387-4397 [CD 67] PRA172-4400-4401 [CD 69] PRA172-4407 [CD 71] PRA172-4416-4418 [CD 72] PRA172-4420-4421 [CD 73] PRA172-4423-4427 [CD 74] PRA172-4431-4432 [CD 75] PRA172-4438 [CD 76] PRA172-4442-4443 [CD 77] PRA172-4450-4451 [CD 78] PRA172-4453-4456 [CD 79] PRA172-4457 [CD 80] PRA172-4458-4459 [CD 81] PRA172-4477-4479 [CD 83 83A] PRA172-4485-4487 [CD 84] PRA172-4499 [CD 89] PRA172-4500-4501 [CD 90] PRA172-4507 [CD 94] PRA172-4511 [CD 96] PRA172-4513 [CD 97] PRA172-4514-4515 [CD 98] PRA172-4516 [CD 99] PRA172-4519-4523 [CD 100] PRA172-4524-4525 [CD 101] PRA172-4526-4527 [CD 102] PRA172-4529 [CD 103] PRA172-4539-4540 [CD 106] PRA172-4541-4543 [CD 107] PRA172-4544 [CD 108] PRA172-4551 [CD 109] PRA172-4552 [CD 110] PRA172-4554 [CD 111] PRA172-4557 (in part per RR # 170) [CD 112] PRA172-4558 [CD 113] PRA172-4566-4568 [CD 114] PRA172-4594-4607 [CD 116] PRA172-4608-4609 [CD 117] PRA172-4629-4633 [CD 118] PRA172-4645-4655 [CD 119] PRA172-4661 [CD 120] PRA172-4663-4665 [CD 121] PRA172-4669 [CD 122] PRA172-4670-4675 [CD 123] PRA172-4676-4679 [CD 124] PRA172-4683-4685 [CD 125] PRA172-4689-4691 [CD 126] PRA172-4693-4699 [CD 127] PRA172-4701 [CD 128] PRA172-4703 [CD 129] PRA172-4709-4719 [CD 130] PRA172-4720-4727 [CD 131] PRA172-4728 [CD 132] PRA172-4731-4734 [CD 133] PRA172-4735-4738 [CD 134] PRA172-4739-4742 [CD 135] PRA172-4743-4748 [CD 136] PRA172-4751 [CD 138] PRA172-4752-4753 [CD 139] PRA172-4793-4794 [CD 140] PRA172-4795-4796 [CD 141] PRA172-4797-4802 [CD 142] PRA172-4803-4804 [CD 143] PRA172-4835 [CD 144] PRA172-4844-4845 [CD 145] PRA172-4874 [CD 149] PRA172-4875 [CD 150] PRA172-4878 [CD 152] PRA172-4908-4912 [CD 154] PRA172-4913-4914 [CD 155] PRA172-4921-4926 [CD 157] PRA172-4927-4929 [CD 158] PRA172-4930-4931 [CD 159] PRA172-4932 [CD 160] PRA172-4935-4936 (in part per RR # 170) [CD 161] PRA172-4937-4939 [CD 162] PRA172-4943 [CD 164] PRA172-4944 [CD 165] PRA172-4946 [CD 166] PRA172-4955 [CD 168] PRA172-4980-4981; 4983 [CD 170] PRA172-5030-5031 [CD 177 177A] PRA172-5032-5035 [CD 178] PRA172-5077-5088 [CD 179] PRA172-5093-5096 [CD 180] PRA172-5118-5123 [CD 183] PRA172-5140 [CD 184] PRA172-5149-5155 [CD 185] PRA172-5156 [CD 186] PRA172-5158-5159 [CD 187] PRA172-5176-5177 [CD 189] PRA172-5179 [CD 190] PRA172-5185-5190 [CD 193] PRA172-5192 [CD 194] PRA172-5193-5194 [CD 195] PRA172-5195 [CD 196] PRA172-5196 [CD 197] PRA172-5198-5200 [CD 198] PRA172-5201-5202 [CD 199] PRA172-5204 [CD 201] PRA181-0045-0047 [CD 206] PRA181-0104-0106 [CD 209] PRA181-0107-0109 [CD 210] PRA181-0110-0111 [CD 211] PRA181-0113-0114 [CD 212] PRA181-0136-0139 [CD 213] PRA181-0140-0142 [CD 214] PRA181-0181 [CD 215] PRA181-0207; 0209-0210 [CD 216] PRA181-0243-0247 [CD 217] PRA181-0323-0324 [CD 222] PRA181-0329-0331 [CD 224] PRA181-0364-0365 [CD 229] PRA181-0388-0392 [CD 233] PRA181-0396-0398 [CD 234] PRA181-0430-0445 [CD 237] PRA181-0529 [CD 260] PRA181-0539-0540 [CD 264] PRA181-0541 [CD 265] PRA181-0565-0567 [CD 268] PRA181-0630-0632 [CD 276] PRA181-0657-0658 [CD 279] PRA181-0712-0714 [CD 281] PRA181-0719-0720 [CD 282] PRA181-0741-0743 [CD 284] PRA181-0766-0767 [CD 286] PRA181-0768-0770 [CD 287] PRA181-0807-0845 [CD 295] PRA181-0908-0912; 0915 [CD 306] PRA181-0919-0920 [CD 309] PRA181-0923-0924 [CD 311] PRA181-0925-0926 [CD 312] PRA181-0927-0929 [CD 313] PRA181-0958-0959 [CD 324] PRA181-0976-0977 [CD 326] PRA181-1000-1002 [CD 331] PRA181-1028-1030 [CD 335] PRA181-1085-1087 [CD 343] PRA181-1090-1094 [CD 345] PRA181-1098-1102 [CD 346] PRA181-1188 [CD 356] PRA181-1310-1314 [CD 365] PRA181-1394-1396 [CD 371] PRA181-1433-1437 [CD 374] PRA181-1537-1539 [CD 380] PRA181-1543 [CD 381] PRA181-1642-1643; 1645-1647 [CD 391] PRA181-1661-1663 [CD 392] PRA181-1709-1716 [CD 395] PRA181-1766-1767 [CD 399] PRA181-1796-1798 [CD 405] PRA181-1854-1856 [CD 409] PRA181-1857-1858 [CD 410] PRA181-2003-2004 [CD 414] PRA181-2117-2121 [CD 430] PRA181-2133-2136; 2138-2139 [CD 432] PRA181-2174-2175 [CD 436] PRA181-2277-2280 [CD 453] PRA181-2318 [CD 455] PRA181-2324-2325 [CD 456] PRA181-2332 [CD 459] PRA181-2339-2342 [CD 460] PRA181-2356-2357 (in part per RR # 170) [CD 463] PRA181-2378 [CD 466] PRA181-2403-2404 [CD 471] PRA181-2422 [CD 472] PRA181-2424 [CD 473] PRA181-2474-2475 [CD 481] PRA181-2510-2511 [CD 486] PRA181-2564-2565 [CD 494] PRA181-2582-2583 [CD 495] PRA181-2699-2670; 2716-2720 [CD 498] PRA181-2738-2750 [CD 499]

and it is

FURTHER ORDERED that Plaintiff's claims of deliberative process privilege be and hereby are overruled with respect to the following pages of the following Challenged Documents:

PRA079-0027 [CD 2] PRA079-0115-0119 [CD 6] PRA079-0126 [CD 7] PRA079-0129-0144 [CD 8] PRA079-0191-0220 [CD 11] PRA079-0221-0222 [CD 12] PRA079-0311 [CD 17] PRA079-0342 [CD 19] PRA079-0343 [CD 20] PRA079-0379 [CD 25] PRA079-0395 [CD 28] PRA079-0398 [CD 31] PRA079-0445 [CD 35] PRA079-0446 [CD 36] PRA172-4088-4089 [CD 38] PRA172-4095 [CD 39] PRA172-4104 [CD 41] PRA172-4171 [CD 49] PRA172-4220-4222 [CD 55] PRA172-4241-4242 [CD 56] PRA172-4244-4245 [CD 57] PRA172-4261 [CD 58] PRA172-4273 [CD 59] PRA172-4357 [CD 64] PRA172-4398-4399 [CD 68] PRA172-4415 [CD 72] PRA172-4419 [CD 73] PRA172-4422 [CD 74] PRA172-4452 [CD 79] PRA172-4489 [CD 86] PRA172-4502 [CD 91] PRA172-4503 [CD 92] PRA172-4509-4510 [CD 95] PRA172-4680-4682 [CD 125] PRA172-4933-4934 [CD 160] PRA172-4947 [CD 166] PRA172-4948-4954 [CD 167] PRA172-4958-4966 [CD 169] PRA172-4982 [CD 170] PRA172-5092 [CD 180] PRA172-5106 [CD 182] PRA172-5157 [CD 187] PRA172-5191 [CD 193] PRA172-5197 [CD 197] PRA172-5203 [CD 200] PRA181-0112 [CD 211] PRA181-0115 [CD 212] PRA181-0182-0183; 0186-0191 [CD 215] PRA181-0208 [CD 216] PRA181-0353-0355 [CD 227] PRA181-0537-0538 [CD 264] PRA181-0700-0701 [CD 280] PRA181-0711 [CD 281] PRA181-0718 [CD 282] PRA181-0754-0759 [CD 285] PRA181-0806 [CD 295] PRA181-0913-0914 [CD 306] PRA181-1010-1011 [CD 334] PRA181-1308-1309 [CD 365] PRA181-1393 [CD 371] PRA181-1397-1402 [CD 372] PRA181-1534-1536 [CD 380] PRA181-1541-1542; 1544 [CD 381] PRA181-1644 [CD 391] PRA181-1660; 1664 [CD 392] PRA181-1679-1683 [CD 394] PRA181-1707-1708 [CD 395] PRA181-1779-1780 [CD 401] PRA181-1794-1795 [CD 405] PRA181-2087-2088 [CD 423] PRA181-2091-2092 [CD 424] PRA181-2093-2094 [CD 425] PRA181-2097-2098 [CD 426] PRA181-2108-2109 [CD 429] PRA181-2276 [CD 453] PRA181-2338 [CD 460] PRA181-2377 [CD 466] PRA181-2402 [CD 471] PRA181-2423 [CD 472] PRA181-2555-2563 [CD 494] PRA181-2566-2581 [CD 495] PRA181-2698; 2701-2715 [CD 498] PRA181-2733-2737 [CD 499]

and it is

FURTHER ORDERED that Plaintiff's claims of presidential communications privilege be and hereby are sustained for the following pages of the following Challenged Documents:

PRA079-0223-0224 [CD 13] PRA079-0381-0383 [CD 26] PRA172-4128 [CD 45] PRA172-4139 [CD 46] PRA172-4147 [CD 47] PRA172-4490-4491 [CD 87] PRA172-4987-4988 [CD 172] PRA172-5001-5007 [CD 173] PRA172-5008-5010 [CD 174] PRA172-5011-5025 [CD 175] PRA172-5026-5029 [CD 176] PRA172-5173-5175 [CD 188] PRA181-0009-0011 [CD 204] PRA181-0053-0054 [CD 207] PRA181-0067-0069 [CD 208] PRA181-0284-0285 [CD 221] PRA181-0325-0328 [CD 223] PRA181-0349-0352 [CD 226] PRA181-0361-0363 [CD 228] PRA181-0446-0447 [CD 238] PRA181-0449 [CD 239] PRA181-0453-0454 [CD 241] PRA181-0460-0464 [CD 244] PRA181-0469-0470 [CD 247] PRA181-0472-0473 [CD 248] PRA181-0474 [CD 249] PRA181-0490-0497 [CD 253] PRA181-0499-0509 [CD 254] PRA181-0512-0513 [CD 256] PRA181-0514-0515 [CD 257] PRA181-0570-0572 [CD 269] PRA181-0574-0576 [CD 270] PRA181-0609-0610 [CD 273] PRA181-0611; 0613-0617 [CD 274] PRA181-0735-0736 [CD 283] PRA181-0789 [CD 290] PRA181-0852-0856 [CD 296] PRA181-0860-0864 [CD 297] PRA181-0882 [CD 298] PRA181-0886-0887 [CD 299] PRA181-0888-0889 [CD 300] PRA181-0930-0931 [CD 314] PRA181-0939-0943 [CD 318] PRA181-0966 [CD 325] PRA181-0979-0980 [CD 327] PRA181-0992 [CD 329] PRA181-0998-0999 [CD 330] PRA181-1009 [CD 333] PRA181-1041-1042 [CD 338] PRA181-1049-1050 [CD 339] PRA181-1191; 1193 [CD 357] PRA181-1201 [CD 358] PRA181-1206-1207 [CD 359] PRA181-1208 [CD 360] PRA181-1210; 1212-1214 [CD 361] PRA181-1377-1379 [CD 368] PRA181-1390-1392 [CD 370] PRA181-1520 [CD 377] PRA181-1526-1527 [CD 378] PRA181-1528; 1533 [CD 379] PRA181-1583-1587 [CD 383] PRA181-1589-1590 [CD 384] PRA181-1624; 1626-1628 [CD 388] PRA181-1634-1635 [CD 389] PRA181-1732-1734 [CD 397] PRA181-1783-1786 [CD 402] PRA181-1792 [CD 404] PRA181-1825 [CD 407] PRA181-2171 [CD 434] PRA181-2172-2173 [CD 435] PRA181-2202-2203 [CD 441] PRA181-2204-2215 [CD 442] PRA181-2222 [CD 443] PRA181-2232-2234 [CD 446] PRA181-2245-2246 [CD 448] PRA181-2247-2248 [CD 449] PRA181-2362-2364 [CD 464] PRA181-2383-2386 [CD 467] PRA181-2432-2433 [CD 474] PRA181-2349-2445 [CD 475] PRA181-2447-2449 [CD 477] PRA181-2467 [CD 478] PRA181-2468-2469 [CD 479] PRA181-2470-2472 [CD 480] PRA181-2481-2482 [CD 483] PRA181-2497-2506 [CD 484] PRA181-2507-2509 [CD 485] PRA181-2515-2517 [CD 487] PRA181-2518 [CD 488] PRA181-2519-2520 [CD 489] PRA181-2521-2523 [CD 490] PRA181-2525 [CD 492]

And it is

FURTHER ORDERED that Plaintiff's claims of presidential communications privilege be and hereby are overruled with respect to the following pages of the following Challenged Documents:

PRA079-0225 [CD 13] PRA079-0278-0279 [CD 16] PRA079-0342 [CD 19] PRA079-0380 [CD 26] PRA079-0395 [CD 28] PRA079-0398 [CD 31] PRA079-0423 [CD 33] PRA079-0424 [CD 34] PRA079-0446 [CD 36] PRA172-4114 [CD 43] PRA172-4140 [CD 46] PRA172-4797-4802 [CD 142] PRA172-4874 [CD 149] PRA181-0104-0106 [CD 209] PRA181-0107-0109 [CD 210] PRA181-0110-0112 [CD 211] PRA181-0113-0115 [CD 212] PRA181-0140-0142 [CD 214] PRA181-0181-0199 [CD 215] PRA181-0207-0210 [CD 216] PRA181-0243-0247 [CD 217] PRA181-0353-0355 [CD 227] PRA181-0364-0365 [CD 229] PRA181-0388-0392 [CD 233] PRA181-0448 [CD 238] PRA181-0455 [CD 241] PRA181-0471 [CD 247] PRA181-0489 [CD 253] PRA181-0498 [CD 254] PRA181-0516 [CD 257] PRA181-0568-0569 [CD 269] PRA181-0573 [CD 270] PRA181-0612 [CD 274] PRA181-0630-0632 [CD 276] PRA181-0768-0770 [CD 287] PRA181-0788 [CD 290] PRA181-0885 [CD 299] PRA181-0890 [CD 300] PRA181-1008 [CD 333] PRA181-1010-1011 [CD 334] PRA181-1188 [CD 356] PRA181-1192 [CD 357] PRA181-1199-1200 [CD 358] PRA181-1211 [CD 361] PRA181-1393-1396 [CD 371] PRA181-1529 [CD 379] PRA181-1582 [CD 383] PRA181-1588 [CD 384] PRA181-1625 [CD 388] PRA181-1633 [CD 389] PRA181-1766-1767 [CD 399] PRA181-1779-1780 [CD 401] PRA181-1781-1782 [CD 402] PRA181-1793 [CD 404] PRA181-1823-1824 [CD 407] PRA181-1854-1856 [CD 409] PTA181-1857-1858 [CD 410] PRA181-2003-2004 [CD 414] PRA181-2087-2088 [CD 423] PRA181-2091-2092 [CD 424] PRA181-2093-2094 [CD 425] PRA181-2097-2098 [CD 426] PRA181-2108-2109 [CD 429] PRA181-2117-2121 [CD 430] PRA181-2133-2136; 2138-2139 [CD 432] PRA181-2221 [CD 443] PRA181-2318 [CD 455] PRA181-2382 [CD 467] PRA181-2474-2475 [CD 481] PRA181-2510-2511 [CD 486] PRA181-2733-2750 [CD 499]

And it is

FURTHER ORDERED that Plaintiff's claims of attorney-client privilege be and hereby are sustained for Challenged Document 165 (PRA172-4944) and Challenged Document 191, (PRA172-5180-5182); and it is

FURTHER ORDERED that Plaintiff's claims of attorney-client privilege be and hereby are overruled with respect to Challenged Document 30 (PRA079-0397); Challenged Document 54 (PRA172-4187-4193); Challenged Document 167 (PRA172-4948-4954); Challenged Document 481 (PRA181-2474-2475); and Challenged Document 490 (PRA181-2521-2523); and it is

FURTHER ORDERED that Joint Defendants' need overcomes Plaintiff's claims of deliberative process privilege and/or presidential communications privilege for the following pages of the following Challenged Documents:

PRA079-0397 [CD 30] PRA172-4107-4113 [CD 42] PRA172-4114 [CD 43] PRA172-4187-4193 [CD 54] PRA172-4258-4260 [CD 58] PRA172-4335 [CD 62] PRA172-4348-4349 [CD 63] PRA172-4358-4360 [CD 64] PRA172-4368; 4372 [CD 65] PRA172-4420-4421 [CD 73] PRA172-4423; 4425 [CD 74] PRA172-4519-4523 [CD 100] PRA172-4566-4568 [CD 114] PRA172-4669 [CD 122] PRA172-4689-4691 [CD 126] PRA172-4709-4719 [CD 130] PRA172-4720-4727 [CD 131] PRA172-4878 [CD 152] PRA172-4908-4912 [CD 154] PRA172-5077-5088 [CD 179] PRA172-5176-5177 [CD 189] PRA172-5185-5190 [CD 193] PRA181-0207; 0209-0210 [CD 216] PRA181-0439-0445 [CD 237] PRA181-1310-1314 [CD 365] PRA181-2277-2280 [CD 453] PRA181-2339-2342 [CD 460]

And it is

FURTHER ORDERED that Plaintiff shall produce the following pages of the following Challenged Documents to Joint Defendants within five (5) days of the date of this Order:

PRA079-0013 [CD 1] PRA079-0027 [CD 2] PRA079-0029 [CD 3] PRA079-0011-0013 [CD 4] PRA079-0114 [CD 5] PRA079-0115-0119 [CD 6] PRA079-0126 [CD 7] PRA079-0129-0144 [CD 8] PRA079-0156-0159 [CD 9] PRA079-0167 [CD 10] PRA079-0221-0222 [CD 12] PRA079-0225 [CD 13] PRA079-0275-0277 [CD 15] PRA079-0311 [CD 17] PRA079-0342 [CD 19] PRA079-0343 [CD 20] PRA079-0344 [CD 21] PRA079-0348 [CD 22] PRA079-0352 [CD 23] PRA079-0379 [CD 25] PRA079-0380 [CD 26] PRA079-0390 [CD 27] PRA079-0395 [CD 28] PRA079-0396 [CD 29] PRA079-0397 [CD 30] PRA079-0398 [CD 31] PRA079-0406 [CD 32] PRA079-0445 [CD 35] PRA079-0446 [CD 36] PRA172-0486-0487 [CD 37] PRA172-4088-4089 [CD 38] PRA172-4095 [CD 39] PRA172-4104 [CD 41] PRA172-4107-4113 [CD 42] PRA172-4114 [CD 43] PRA172-4140 [CD 46] PRA172-4171 [CD 49] PRA172-4187-4193 [CD 54] PRA172-4220-4222 [CD 55] PRA172-4241-4242 [CD 56] PRA172-4244-4245 [CD 57] PRA172-4258-4261 [CD 58] PRA172-4273 [CD 59] PRA172-4335 [CD 62] PRA172-4348-4349 [CD 63] PRA172-4357-4360 [CD 64] PRA172-4368; 4372 [CD 65] PRA172-4398-4399 [CD 68] PRA172-4402 [CD 70] PRA172-4415 [CD 72] PRA172-4419-4421 [CD 73] PRA172-4422-4423; 4425 [CD 74] PRA172-4452 [CD 79] PRA172-4489 [CD 86] PRA172-4502 [CD 91] PRA172-4503 [CD 92] PRA172-4509-4510 [CD 95] PRA172-4519-4523 [CD 100] PRA172-4566-4568 [CD 114] PRA172-4669 [CD 122] PRA172-4680-4682 [CD 125] PRA172-4689-4691 [CD 126] PRA172-4709-4719 [CD 130] PRA172-4720-4727 [CD 131] PRA172-4847 [CD 146] PRA172-4860 [CD 147] PRA172-4861 [CD 148] PRA172-4876-4877 [CD 151] PRA172-4878 [CD 152] PRA172-4908-4912 [CD 154] PRA172-4933-4934 [CD 160] PRA172-4947 [CD 166] PRA172-4948-4954 [CD 167] PRA172-4958-4966 [CD 169] PRA172-5077-5078 [CD 179] PRA172-5092 [CD 180] PRA172-5106 [CD 182] PRA172-5157 [CD 187] PRA172-5176-5177 [CD 189] PRA172-5185-5191 [CD 193] PRA172-5197 [CD 197] PRA172-5203 [CD 200] PRA181-0001-0002 [CD 203] PRA181-0112 [CD 211] PRA181-0115 [CD 212] PRA181-0182-0183; 0187-0191 [CD 215] PRA181-0207-0210 [CD 216] PRA181-0353-0355 [CD 227] PRA181-0439-0445 [CD 237] PRA181-0455 [CD 241] PRA181-0471 [CD 247] PRA181-0489 [CD 253] PRA181-0498 [CD 254] PRA181-0516 [CD 257] PRA181-0534-0536 [CD 263] PRA181-0537 [CD 264] PRA181-0568-0569 [CD 269] PRA181-0573 [CD 270] PRA181-0700-0701 [CD 280] PRA181-0711 [CD 281] PRA181-0718 [CD 282] PRA181-0754-0759 [CD 285] PRA181-0788 [CD 290] PRA181-0795-0796 [CD 293] PRA181-0806 [CD 295] PRA181-0885 [CD 299] PRA181-0890 [CD 300] PRA181-1008 [CD 333] PRA181-1010-1011 [CD 334] PRA181-1040 [CD 337] PRA181-1211 [CD 361] PRA181-1308-1314 [CD 365] PRA181-1372-1373 [CD 367] PRA181-1393 [CD 371] PRA181-1397-1402 [CD 372] PRA181-1529 [CD 379] PRA181-1534-1536 [CD 380] PRA181-1541-1542 [CD 381] PRA181-1582 [CD 383] PRA181-1588 [CD 384] PRA181-1633 [CD 389] PRA181-1660; 1664 [CD 392] PRA181-1670-1674 [CD 393] PRA181-1679-1683 [CD 394] PRA181-1707 [CD 395] PRA181-1728-1731 [CD 396] PRA181-1779-1780 [CD 401] PRA181-1781-1782 [CD 402] PRA181-1793 [CD 404] PRA181-1794-1795 [CD 405] PRA181-1823-1824 [CD 407] PRA181-2087-2088 [CD 423] PRA181-2091-2092 [CD 424] PRA181-2093-2094 [CD 425] PRA181-2097-2098 [CD 426] PRA181-2108-2109 [CD 429] PRA181-2176 [CD 437] PRA181-2221 [CD 443] PRA181-2276-2280 [CD 453] PRA181-2338-2342 [CD 460] PRA181-2347 [CD 461] PRA181-2377 [CD 466] PRA181-2382 [CD 467] PRA181-2402 [CD 471] PRA181-2423 [CD 472] PRA181-2555-2558 [CD 494] PRA181-2566-2568 [CD 495] PRA181-2698 [CD 498] PRA181-2733-2737 [CD 499]