Answer to Relatively Novel Question: Lack of Diligence in Retrieving Inadvertently Disclosed Documents Waives Deliberative Process Privilege

The U.S. Federal Court of Claims recently decided a “relatively novel question: whether a lack of diligence in asserting the deliberative process privilege to claw back previously disclosed documents can serve as a waiver of that privilege.”  In Sikorsky Aircraft Corp. v. United States, 2012 WL 4018026 (Ct. Cl. Sept. 13, 2012), the U.S. government claimed that Sikorsky violated federal regulations by improperly allocating overhead costs to government contracts. On February 17, 2011, the government inadvertently produced an email string between an auditor and his superior at the Defense Contracting Auditing Agency (DCAA). The auditor was questioned without objection during his deposition on June 20, 2011, but at the end of the deposition the government’s lawyer stated that the email string may be subject to the deliberative process privilege.  Despite this statement, the government did not formally assert the privilege until May 14, 2012–fifteen months after the email string was produced.

The court first decided that, although some courts hold otherwise, invocation of the deliberative process privilege is subject to a timeliness requirement.  The court reasoned that the privilege may be waived for other reasons, such as placing a portion of the material at issue, and there was no basis for refraining from extending the waiver to “instances of indiligence, indolence, or dawdling.”  But the court limited the timeliness waiver to the deliberative process privilege branch of the executive privilege, and indicated that a timeliness waiver may not apply to chief-executive communications, military secrets, and intelligence reports.

The court next outlined the criteria courts should apply in determining when an inadvertent disclosure constitutes a waiver.  Finding no binding precedent, the court studied Federal Rule of Evidence 502 and prior inadvertent disclosure decisions for other evidentiary privileges.  The court held that Rule 502’s inadvertent disclosure criteria should apply to inadvertent disclosures of materials subject to the deliberative process privilege.  Under this criteria, a disclosure of information protected by the deliberative process privilege will not constitute a waiver if (1) the disclosure was inadvertent; (2) the privilege’s holder took reasonable steps to prevent disclosure in the first instance; and (3) the holder promptly took reasonable steps to rectify the error.  And in this case, the court ruled that the government’s fifteen-month delay in asserting the privilege was not prompt and that the deliberative process privilege was waived.

PoP Analysis.  In an area lacking definitive authority, the Sikorsky opinion serves as persuasive authority that government agencies must assert the deliberative process privilege in a timely manner.  And the criteria to determine waiver of the privilege through inadvertent disclosure is Federal Rule of Evidence 502.  While the timeliness requirement likely will not apply to other branches of the executive privilege, most notably the presidential or chief-executive communications privilege, government lawyers must maintain diligence when protecting deliberative and pre-decisional documents protected by the deliberative process privilege.

The Sikorsky opinion is also helpful to practitioners in need of a succinct summary of the deliberative process privilege, including the substantive criteria and the procedure for invoking the privilege.  While some state courts, most recently New Mexico, refuse to recognize a deliberative process privilege, many states have not decided the issue.  And those states looking for guidance in making the decision should look to Sikorsky as authority for the substantive scope and procedural requirements for successfully asserting the privilege.