Court Imposes Strict Privilege-Log Standards for Deliberative Process Privilege

As discussed in an earlier post, courts are increasingly finding privilege waiver when a party either fails to submit a privilege log or submits an insufficient one.  And a Delaware court has now elevated the privilege-log requirements when a governmental agency asserts the deliberative process privilege.  State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013). You may access the opinion here.

In Figg, the Delaware DepartmentSlide1 of Transportation asserted the deliberative process privilege in an effort to preclude production of a retained investigator’s analysis of a bridge-embankment failure.  In a ruling profiled in an earlier post, the court refused to recognize the deliberative process privilege.  But the court nevertheless scolded the government agency for its insufficient privilege log.

The Figg court stated that privilege logs must include sufficiently detailed descriptions “so that someone can actually assess whether it makes sense to challenge the document.”  For the deliberative process privilege, it must include—

  1.  The date of each communication;
  2. The parties to the communication, including both names and positions;
  3. The attorneys involved; and
  4. The subject matter of each communique sufficient to show why the privilege is warranted, as well as whether it pertains to the decision or decisions in question, including the facts to bring each document within the narrow reach of the privilege.

The court stated that, in essence, the privilege log must contain information to show that each document is “both pre-decisional and deliberative.”  In other words, the government agency’s privilege log must include enough information to allow the court to determine how each document fits into the deliberative process.  Boilerplate language and conclusory statements do not meet these strict requirements.

The Department of Transportation included dates and descriptions of the putatively privileged documents, with the descriptions including “analysis of,” “analysis of embankment failure report,” “discussion of,” “notes and handouts,” “draft of,” and “notes of.”  The court found these descriptions inadequate because they did not provide sufficient detail or explanation to identify the deliberative material.  And the court emphasized that the government agency must provide a sufficient description for each document, suggesting that the agency lacked good faith because it cut and paste some of the privilege-log entries.

Delaware Court Rejects Deliberative Process Privilege

The Delaware Superior Court rejected the state Department of Transportation’s request that it recognize a common-law deliberative process privilege.  This rejection came despite the court previously adopting the closely related chief executive communications privilege.  State Dep’t of Transp. v. Figg Bridge Engineers, Inc., 2013 WL 5365384 (Del. Super. Ct. Aug. 13, 2013).  You may access the opinion here.


Figg Bridge Engineers, Inc. contracted with DelDOT to design a new bridge crossing the Indian River Inlet.  Figg then subcontracted with AMEC, a geotechnical engineering firm, to conduct an assessment and study

Indian River Inlet Bridge

Indian River Inlet Bridge

of the roadway and bridge structure.  Figg, using AMEC’s study data, designed earthen embankments for the roadway approaches.  These embankments later failed causing delays in the bridge-building process.

DelDOT retained an engineering firm (OCL) to investigate, and OCL retained Golder Associates, Inc., a geotechnical engineering firm, to assist.  DelDOT later sued Figg and AMEC over AMEC’s alleged errors and omissions, and AMEC subpoenaed documents from non-party Golder.  DelDOT opposed the subpoena, arguing that the deliberative process privilege protected Golder’s investigatory documents from discovery.

Deliberative Process Privilege

Often misleadingly called the “executive privilege,” the deliberative process privilege protects from discovery (and public records requests) documents reflecting opinions, recommendations, and deliberations that are part of the governmental agency decision-making process.  The privilege protects only documents that are both deliberative—reflecting the back-and-forth of the deliberation process—and predecisional.  The privilege is qualified, meaning that a party may overcome the privilege upon a sufficient showing of need.


The court looked to Delaware Rule of Evidence 508(b), accessible here, to determine whether a common-law deliberative process privilege should exist.  The court noted that, in Guy v. Judicial Nominating Comm’n, 659 A.2d 777 (Del. 1995), it recognized a common-law evidentiary privilege protecting gubernatorial communications with his staff.  But the court noted

Delaware Superior Court Sussex County Courthouse

Delaware Superior Court Sussex County Courthouse

that no court had similarly recognized the closely related deliberative process privilege.

The court also found persuasive the New Mexico Supreme Court’s opinion in Republican Party of New Mexico v. New Mexico Taxation & Revenue Dep’t, 283 P.3d 853 (N.M. 2012), recognizing a chief executive communications privilege but rejecting a deliberative process privilege.  PoP profiled the New Mexico Supreme Court’s ruling in this post, and this one.

PoP Analysis

Other than concern over the “fundamental unfairness” of permitting executive agencies to avoid producing documents that a private plaintiff would have to produce, the court provided little analysis for its rejection of the deliberative process privilege.  The court simply reasoned that it would not apply the privilege because no Delaware precedent supported it.

But the lack of precedent arguably does not close the door to common-law development.  Delaware Rule of Evidence 501 provides that evidentiary privileges include those adopted by “court decision.”  This language appears as compromise wording combining the Federal Rule of Evidence 501, which permits common law development, and Uniform Rule of Evidence 501, adopted by many states, which does not permit common-law development.  New Mexico, the state upon which the Delaware court relied, follows the URE terminology prohibiting common-law privilege development. See N.M.R.A., Rule 11–501.

Delaware’s “court decisions” language essentially means the common law, which allows evolving concepts rather than static, never-changing law.  Contrary to New Mexico, Delaware courts have authority to recognize a new privilege or modify an existing privilege should the merits warrant. But the Figg court did not discuss this possibility.

Privileges Protect OLC Memos Supporting Obama’s Recess Appointment of CFPB Director Richard Cordray 1

Citing the deliberative process privilege, SDNY Judge Rakoff thwarted the New  York Times’ attempt to obtain a copy of Department of Justice Office of Legal Counsel’s

President Obama appoints Richard Cordray as the first CFPB Director

President Obama appoints Richard Cordray as the first CFPB Director

legal memoranda allegedly supporting President Obama’s January 2012 recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB).  In its opinion, available at this link, Judge Rakoff ruled that the Times failed to prove that White House Press Secretary Jay Carney’s remarks or the temporal connection of the Cordray appointment (January 4) and the OLC memo (January 6) constituted presidential approval sufficient to warrant waiver of the deliberative process privilege.  New York Times Co. v. U.S. Dep’t of Justice, 2013 WL 174222 (S.D.N.Y. Jan. 7, 2013).

Recess Appointment

On January 4, 2012, while the U.S. Senate was in recess, President Obama appointed Richard Cordray as CFPB Director.  The Constitution permits recess appointments, but presidents traditionally do not make appointments during a recess lasting less than 10 days.  During the Senate’s December-January winter break, it held so-called “pro forma” sessions to prevent the recess from officially lasting more than three days.  The Cordray appointment created legal and political controversy because it came during a period when the Senate was not formally in recess.

The OLC sought to quell the controversy by publishing a legal memorandum authored by Virginia Seitz, OLC Ass’t Attorney General.  In the memo, available here, Seitz argued that the Senate’s pro forma sessions could not prevent the President’s constitutional authority to make appointments during a Senate recess.  The memo cited two prior OLC memos, authored by Jack L. Goldsmith and John P. Elwood, as precedent.

NYT FOIA Request

The Times filed suit to enforce its FOIA request for access to the Goldsmith and Elwood memoranda.  The DoJ countered that Exemption 5 protected the memoranda from disclosure because the deliberative process privilege, attorney-client privilege, and presidential communications privilege covered their contents.  The Times conceded that deliberative process privilege covered the memoranda but argued that the DoJ had waived the privilege.

Privilege Issues

The Court correctly stated that the government may waive the deliberative process privilege in two situations.  First, the so-called “working law” waiver applies when the governmental document is more properly categorized as stating or interpreting the agency’s law and policies rather than as a document containing predecisional agency deliberations.  Second, the adoption or incorporation waiver provides that a document containing predecisional deliberations loses its privileged status when the governmental agency adopts its contents as policy.

The Times argued that President Obama adopted the OLC memo–thus waiving the privilege–when he made the January 4, 2012 Cordray recess appointment.  For proof, the Times argued that the chronology between the OLC memo and the appointment proved the president’s adoption.  President Obama made the January 4 recess appointment following meetings with OLC attorneys.  Then, on January 6, 2012, the OLC sent the White House the Seitz memorandum memorializing its verbal recommendations.

The Times also argued that White House Press Secretary Jay Carney’s comments in his January 12, 2012 press briefing proved the President’s adoption.   A reporter questioned whether the President made the recess appointment without OLC approval because the appointment was made on January 4, 2012 and the Seitz memo was finalized on January 6, 2012.  In response, Mr. Carney stated that the President made the decision following receipt of a verbal opinion and that it was common for OLC memos memorializing verbal opinions to take some time to prepare.  This video clip from the January 12, 2012 White House Press Briefing shows Mr. Carney’s remarks regarding the OLC memo.


The Court ruled that chronology alone did not prove that the president adopted the reasoning of the Seitz memo–and certainly not the reasoning set forth in the Goldsmith and Elwood memoranda. Moreover, the Court noted that Mr. Carney’s remarks did not show that the President adopted the reasoning of the Goldsmith and Elwood memoranda.  To show adoption waiver of the deliberative process privilege, the party seeking the information must show that the decisionmaker–here the President–relied on the document’s analysis and conclusions.  A decisionmaker can rely on a document’s conclusions without agreeing with the underlying reasoning.  If a decisionmaker reviews an agency recommendation and makes a “yes or no” determination without providing reasoning for the decision, then a court may not infer that she adopted the agency’s reasoning.

Here, Judge Rakoff ruled that the Times produced no evidence that President Obama expressly adopted the reasoning of the Goldsmith and Elwood memoranda in making the Cordray recess appointment. And without this evidence, the deliberative process privilege remained intact to protect the memoranda from public disclosure.

Another Victory for Obama Administration

The New York Times decision, issued on January 7, 2013, marks the second deliberative process privilege victory for the Obama Administration in the span of five days.  On January 2, 2013, the Southern District of New York, in an opinion authored by Judge Colleen McMahon, ruled that the deliberative process privilege protected from FOIA disclosure legal memoranda allegedly supporting the administration’s use of drones to unilaterally kill suspected terrorists, including American citizens.  The decision, explained in an earlier PoP post, similarly held that the administration had not waived the deliberative process privilege through comments made by President Obama and Attorney General Holder.   Consequently, the Obama Administration, in a matter of days, successfully protected from public disclosure the legal bases for its drone program decision and recess appointment decision.