Free Unpublished Opinion - District Court of Federal Claims - federal

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In the United States Court of Federal Claims
Nos. 01-570C, 01-627C, 04-501C (Filed: March 29, 2007) (Not For Publication)
******************************* BLUE LAKE FOREST PRODUCTS, INC., * Plaintiff, * * v. * * THE UNITED STATES, * Defendant. * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * TIMBER PRODUCTS COMPANY, * Plaintiff, * * v. * * THE UNITED STATES, * Defendant. * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * * CLR TIMBER HOLDINGS, INC. * Plaintiff, * * v. * * THE UNITED STATES, * Defendant. * * * * * * * * * * * * * * * * * * * * * * * * ** * * * * * * *

_____________________________________________________ MEMORANDUM OPINION AND ORDER BASED UPON IN CAMERA REVIEW _____________________________________________________ WILLIAMS, Judge

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This discovery dispute involves privilege claims by the Government which required the Court to review three binders of documents in camera.1 Two binders contain documents of the President's Council On Environmental Quality (CEQ) and the third, documents from the Department of Interior (DOI), United States Department of Agriculture (USDA), Forest Service (FS), Bureau of Land Management (BLM), and the Department of Justice (DOJ).2 Privilege Standards Attorney-Client Privilege The attorney-client privilege protects disclosure of confidential communications between a client and his attorney for the purpose of obtaining legal advice. In re Echostar Commc'ns Corp., 448 F.3d 1294, 1298-1299 (Fed. Cir. 2006) (citing United States v. Zolin, 491 U.S. 554, 562 (1989) and Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)); Genentech, Inc. v. United States ITC, 122 F.3d 1409, 1415 (Fed. Cir. 1997). Courts recognize the privilege in order to promote full and frank communication between a client and his attorney so that the client can make well-informed legal decisions and conform his activities to the law. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981); XYZ Corp. v. United States, 348 F.3d 16, 22 (1st Cir. 2003).

In a companion decision entitled "Opinion and Order Granting Plaintiffs' Revised Motion to Compel in Part" issued this date, the Court found an at-issue waiver of the attorney-client privilege and work-product protection and a subject-matter waiver of the attorney-client privilege. Specifically, the Court determined: 1) There has been an at-issue wavier of the attorney-client privilege and work product immunity with respect to 1) documents relating to Defendant's interpretation of the Northwest Plan (NEPA equals implementation) and 2) Defendant's decision to award the timber sales despite developments in the ONRC Action litigation. 2) Defendant has waived the attorney-client privilege for the Brouha Memorandum, Deposition Exhibits 31, 35A, 35B, 41A and 41D and all documents on the same subject matter. The Court defines that subject matter to be: 1) the Government's interpretation and implementation of survey and manage requirements under the Northwest Forest Plan, and 2) the Government's actions in response to the ONRC Action lawsuit regarding timber sales. These latter documents are described in Defendant's July 29, 2005 and August 18, 2005 amended "DE" privilege logs; the 155 CEQ documents are described in the CEQ Privilege Log. 2
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Work Product Immunity The attorney work product protection attaches to documents prepared in anticipation of litigation or for trial by a party or his representative. United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp. Emer. Ct. App. 1985). The work product rule is set out in Rule 26(b)(3) of the Rules of the Court of Federal Claims (RCFC), which provides in part: Subject to the provisions of subdivision (b)(4), a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materiels when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. RCFC 26(b)(3). "Unlike the attorney-client privilege, which protects all communication whether written or oral, work-product immunity protects documents and tangible things, such as memorandums, letters, and e-mails." Echostar, 448 F.3d at 1301; see also Judicial Watch, Inc. v. Dep't of Justice, 432 F.3d 366, 369-70 (D. C. Cir. 2005). Courts "recognize work-product immunity because it promotes a fair and efficient adversarial system by protecting `the attorney's thought processes and legal recommendations' from the prying eyes of his or her opponent." Echostar, 448 F.3d at 1301 (quoting Genentech, 122 F.3d at 1415). In assessing whether a document was prepared "in anticipation of" litigation, a court must examine the connection between the creation of the materials and the litigation at issue to determine whether a legally sufficient causal relationship exists between their creation and the prospective litigation. See 6 Moore's Federal Practice § 26.70[1], at 26-208 (Matthew Bender 3d ed. 1998). As the Second Circuit recognized: The formulation of the work-product rule . . . cited by the Third, Fourth, Seventh, Eighth and D.C. Circuits, is that documents should be deemed prepared "in anticipation of litigation," and thus within the scope of the Rule, if "in light of the nature of the document and the 3

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factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation." Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998) (quoting Charles Alan Wright, Arthur R. Miller, and Richard L. Marcus, 8 Federal Practice & Procedure § 2024, at 343 (1994)). The Adlman Court elaborated: "Where a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation, it falls within [the protections afforded by the work product doctrine]." United States v. Adlman, 134 F.3d. at 1202. Deliberative Process Privilege The deliberative process privilege falls within the scope of the executive privilege. Marriott Int'l Resorts, L.P. v. United States, 437 F.3d 1302, 1306 n.3 (Fed. Cir. 2006); In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997). The deliberative process privilege covers documents "reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated." DOI v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001)(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)).3 For a document to fall within the deliberative category of the executive privilege, it must be both pre-decisional and deliberative. Vons Cos., Inc. v. United States, 51 Fed. Cl. 1, 22 (2001). To qualify as pre-decisional, the information must address matters "antecedent to the adoption of agency policy." Walsky Constr. Co. v. United States, 20 Cl. Ct. 317, 320 (1990) (quoting Jordan v. Dep't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978)). Additionally, to be deliberative, a document must reflect "the give-and-take of the consultative process," rather than constituting a "body of secret law." Vons, 51 Fed. Cl. at 22 (quoting Coastal States Gas Corp. v. Dep't of Energy, 67 F.2d 854, 866-67 (D.C. Cir. 1980)). The executive privilege is a qualified one, and can be overcome upon a showing of evidentiary need weighed against the harm that may result from disclosure. Kaiser, 157 F. Supp. at 946; see Marriott, 437 F.3d at 1307. In Walsky, the Court stated three requirements for assertion of the privilege:

The deliberative category of the executive privilege was first articulated and adopted by the Court of Claims in Kaiser Aluminum & Chem. Corp. v. United States, 157 F. Supp. 939 (Ct. Cl. 1958). The Kaiser Court characterized this privilege as an evidentiary privilege and recognized that "the power must lie in courts to determine executive privilege in litigation." 157 F. Supp. at 947. This privilege subsequently has been widely recognized in Federal courts. CACI Field Servs., Inc. v. United States, 12 Cl. Ct. 680, 686 n.7 (1987) (citing Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318 (D.D.C. 1966), aff'd, 384 F.2d 979, cert. denied, 389 U.S. 952 (1967)). 4

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First, the head of the agency that has control over the requested document [or information] must assert the privilege after personal consideration. Second, the head of the agency must state with particularity what information is subject to the privilege. Third, the agency must supply the court with "precise and certain reasons" for maintaining the confidentiality of the requested document [or information]. Walsky, 20 Cl. Ct. at 320. Subsequently, the Federal Circuit clarified that "an Agency head may delegate the authority to invoke the deliberative process privilege on the Agency's behalf." Marriott, 437 F.3d at 1307-08. Privilege Waiver Standards In a companion decision this Court held that: By voluntarily filing the Brouha Memorandum in the Administrative Record of another lawsuit, the Government waived its attorney-client privilege for that document and all communications on the same subject matter. The Court reasoned: It is settled in this Circuit that a voluntary, intentional waiver of the attorney-client privilege applies to all other communications relating to the same subject matter. Fort James Corp. v. Solo Cup Co., 412 F.3d 1340, 1349 (Fed. Cir. 2005) Opinion and Order Granting Plaintiffs' Revised Motion to Compel in Part, slip op. at 21. However, subject- matter waiver is not broadly applied to the work-product protection or the deliberative process privilege. The Federal Circuit recently recognized that work product waiver is not a broad waiver of all work product related to the same subject matter like the attorney-client privilege, only extends to "factual" or "non-opinion" work product concerning the same subject matter as the disclosed work product. Echostar, 448 F.3d at 1302; see Gen. Elec. Co. v. Johnson, No. 00-5855, 2006 U.S. Dist. LEXIS 64907, at *55-56 (D.D.C. Sep. 12, 2006). With respect to deliberative process, the District Court for the District of Columbia recently recognized: "The concept of subject-matter waiver is almost uniquely a function of the attorney-client relationship. There is no authority for applying the waiver rule to the deliberative process privilege." Gen. Elec., 2006 U.S. Dist. LEXIS 64907 at * 55-56. See generally In re Sealed Case, 121 F.3d 729, 741 (D.C. Cir. 1997) (release of a document only waives the deliberative process privilege for the document or information specifically released, not for related materials. Marisol v. Giuliani, No. 95 Civ. 10533, 1998 U.S. Dist. LEXIS 3719, at *23 (S.D.N.Y Mar. 23, 1998)).

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The Council on Environmental Quality Privilege Log Defendant submitted the declaration of James L. Connaughton, Chairman of the CEQ, with its CEQ Privilege Log, as justification for Defendant's deliberative process, attorney-client, and work-product privilege claims for the CEQ documents. Mr. Connaughton, as CEQ's chairman, has the authority to assert the deliberative process privilege for CEQ. Mr. Connaughton personally reviewed all the documents. Connaughton Dec. ¶¶ 1, 2. Mr. Connaughton states: CEQ was established through enactment of the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321 et seq. ("NEPA"). The purposes of NEPA are to "declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality." 42 U.S.C. § 4321. Under section 204 of NEPA, it is the duty and function of CEQ to, inter alia, review and appraise programs and activities of the Federal Government in light of the policies set forth in NEPA and to make recommendations to the President with respect to the extent to which these programs and activities are contributing to the policies of NEPA. . . . Connaughton Decl. (Sept. 3, 2004) ¶ 2. Mr. Connaughton states that the documents for which he is asserting deliberative process privilege "are all pre-decisional . . . . [and] make recommendations and/or express opinions on legal policy matters . . . ." Id. ¶¶ 4 and 6. Mr. Connaughton further states: As described, infra, with regard to each document withheld on [the basis of deliberative privilege], these documents reflect deliberations regarding litigation over implementation of the Northwest Forest Plan and proposals for interpretation and amendment of the Northwest Forest Plan. The Northwest Forest Plan was adopted in 1994 to end court injunctions that brought timber production to a standstill by providing an adequate level of habitat protection for old growth forest species and a predictable timber supply for economic stability. . . . The documents for which I am asserting the deliberative process privilege also make recommendations and/or express opinions on legal or policy matters. Given the complexity of the legal and policy 6

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issues presented in the context of litigation over the Northwest Forest Plan, and the diversity of viewpoints on these issues, there has been a great deal of discussion and deliberation on related legal and policy matters. Various individuals within the Administration have expressed opinions and/or made legal and policy recommendations regarding the implementation of the Northwest Forest Plan. These opinions and recommendations have been considered and weighed in the formulation of the CEQ and Administration policy relating to the Northwest Forest Plan. . . . In order for CEQ and the Administration as a whole to formulate the most appropriate policies related to the Northwest Forest Plan, officials involved in the process must be able to deliberate amongst themselves as freely and as candidly as possible. Only in such an atmosphere can CEQ receive the honest and unfettered opinions of involved officials so that the most appropriate policy may be developed . . . . Accordingly, CEQ must be allowed to take proper precautions against premature disclosure of recommendations and deliberations in order to foster the free and candid deliberations that are critical to effective policy development. Id. ¶¶ 4, 6, 7. Mr. Connaughton did not, in his declaration, explain on a document-by-document basis why each was subject to the deliberative process privilege. Rather, he asserted the privilege "globally" for the 155 documents, claiming they were all deliberative in two respects -- 1) reflecting "deliberations regarding litigation over the Northwest Forest Plan" and 2) making recommendations and expressing opinions on the implementation of the Northwest Forest Plan. Id. ¶¶ 3, 4, 6; Revised CEQ Privilege Log. The documents for which Mr. Connaughton asserts attorney-client and work-product privileges "are located in the files of the General Counsel of CEQ, Dinah Bear, or the Deputy General Counsel of CEQ, Edward A. Boling." Id. ¶ 8. Mr. Connaughton states that "[at] all times, CEQ has kept confidential all documents identified in the [September 2, 2004 privilege log] as attorney-client and/or work-product privileged." Id. The following are the Court's rulings with respect to the documents listed on Defendant's "Council on Environmental Quality Privilege Log." 1. Document 2: Memorandum, October 6, 1999 - 2 pages From: P. Coppelman, Principal Deputy Asst. Attorney General To: George T. Frampton, Acting Chair, CEQ RE: Litigation Report from Northwest Forest Plant Interagency Steering 7

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Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. This document is a two-page memorandum discussing cases and issues currently developing in the Pacific Northwest. Ruling: The privileges have been waived for only part of the document, paragraph 1 on page 1 entitled ONRC Action v. F.S.& B. L. M., (W.D. Wash). The remaining paragraphs of this document, i.e., paragraph 2,3,4 beginning on the bottom of page 1 through page 2 are privileged, and the subject matter waiver does not cover these paragraphs. Therefore, Defendant is directed to provide a redacted version of this document to Plaintiffs. 2. Document 4: Draft Agenda Interagency Steering Committee, Pacific Northwest Forest Plan, October 6, 1999 - 3 pages.

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. This document is a draft agenda for the interagency steering committee and contains several topics for discussion. One sentence in this draft is covered by the subject-matter waiver of the attorney-client privilege which occurred by Defendant's voluntarily disclosure of the Brouha Memorandum and privileged documents in other COFC litigation. The sentence for which the subject matter waiver occurred relates to the ONRC litigation and is two lines under "II. Litigation Report - Peter Coppleman." The first two lines discussed the ONRC case, and these two lines need to be disclosed. The remainder of the document is privileged under the deliberative process privilege and need not be produced. Ruling: Defendant is directed to produce a redacted version of this page. 3. Document 13: Memorandum from Peter Coppleman to Dinah Bear, September 24, 1999 regarding litigation report for IFC coordinating committee - 3 pages.

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the deliberative process and work-product privileges. 4. Document 19: Draft agenda for the ISC meeting, April 30, 1999 - 3 pages with handwritten notes.

Ruling: Covered by the deliberative process privilege.

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5.

Document 22: Memorandum -- 2 pages From: Ted Boling and John Watts, Trial Attorneys To: Lois Schiffer, Assistant Attorney General, et al., Re: ONRC Action

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the deliberative process privilege. 6. Document 26: Memorandum - August 11, 1998 From: Kathleen A. McGinty To: Ellen Athas, Deputy General Counsel Re: Northwest Forest Plan, Survey and Manage Provisions for Certain Species

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. 3-page memorandum plus 3 pages of questions regarding review/schedule change. Ruling: Covered by deliberative process privilege. 7. Document 27: Fax transmitting settlement letter (fax is undated, but letter is dated Nov. 25, 1998. To: Dinah Bear, et al From: Ted Boling

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product and settlement. Ruling: Covered by deliberative process privilege. 8. Document 30: E-mail dated January 4, 2001 From: D. Prather To: S. Odell, R. Nesbitt, O. Schmidt, E. Boling, et al. -- 2 pages.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. This e-mail is a document fragment regarding the survey and manage response to public comments. Ruling: Covered by deliberative process and attorney-client privileges and work-product protection. 9

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9.

Document 37: E-mail dated October 24, 2000 From N. Hayes To: E.A. Boling Re: Survey and Manage Issues

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by the deliberative process, attorney-client and work-product privileges. Not encompassed by waiver. 10. Document 46: E-mail dated October 3, 2000 From: G.T. Frampton To: E.A. Boling Re: Survey and Manage briefing

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Comment upon funding and transmitting electronic copy of Survey and Manage briefing which was not attached. Ruling: Covered by the deliberative process and attorney-client privilege, not encompassed by waiver. 11. Document 57: E-mail dated October 3, 2000 From: E.A. Boling To: G.T. Frampton, D. Bear Re: Survey and Manage briefing, status of S&M, EIS schedule, scheduling of FS briefing of S.J. Lyons.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by deliberative process privilege and attorney-client privilege, not encompassed by waiver. 12. Document 60: E-mail dated October 30, 2000 From: E.A. Boling To: N. Hayes Re: Survey and Manage Briefing and ESA Compliance - 1 page

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product.

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Ruling: Covered by the deliberative process privilege and the attorney-client privilege, not encompassed by the waiver. 13. Document 63: Briefing - SEIS for Amending the Survey and Manage, protection bumper and other litigation measures, standards and guidelines - 20 pages. Missing pages.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by deliberative process privilege. 14. Document 64: Chart dated September 15, 2000, entitled Response to Washington Office Review, marked predecisional draft document - not subject to FOIA - 30 pages.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by the deliberative process privilege. 15. Document 65: Notes dated August 22, 2000, entitled Survey and Manage SEIS Washington Office Staff Review - 13 pages. Includes memorandum on Pacific Northwest traffic plan and roadless initiative.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by the deliberative process privilege. 16. Document 69: Questions regarding Northwest's Survey and Manage Program, March 1, 2000 - 2 pages. Questions were asked by D. Bear and S. Kasdin.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by the deliberative process privilege. 17. Document 70: Issued paper, January 19, 2000. Entitled "ISSUE: Northwest Forest Plan Survey and Manage Program and SEIS - 01/19/00 - 1 page. From: DOJ Litigation File

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. Ruling: Covered by the deliberative process privilege. 11

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18.

Document 71: Memorandum dated June 5, 1998 -2 pages. From: E. Athas, Deputy General Counsel To: Kathleen A. McGinty, Chair CEQ cc: D. Bear Re: Northwest Forest Plan: Survey and Manage Provisions for Certain Species

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. ONRC's observations on Survey and Manage, dated 4/3/98 containing 3-page fax from Doug Heiken, Western Oregon Field Representative, ONRC, containing 1-page draft dated May 29, 1998, regarding species IV. 9 Liverwort; 1-page draft; analysis of species of proposed change in survey schedule, fungi, alorea; 4/20/98 Questionnaire - 3 pages - excerpts from April 4, 1994 ROD, pages 36-38. Total 13 pages. Ruling: Covered by the deliberative process privilege. 19. Document 73: Decision Memorandum for Secretary, November 19, 1999 From: Mike Dombeck To: James R. Lyons Re: (Facsimile regarding survey and manage funding, Northwest Plan - 2 pages).

Privileges Asserted by Defendant: Deliberative process. Discusses funding options and recommendations. Unsigned, contains handwritten note, one page attachment. Ruling: Covered by the deliberative process privilege. 20. Document 80: Draft paper, containing handwritten date of March 28, 1999 entitled "Assumptions for Survey and Manage Funding Estimates." 3 pages From: The DOJ Litigation File

Privileges Asserted by Defendant: Deliberative process. Discusses surveys required by Judge Dwyer's ruling. Ruling: This draft is covered by the deliberative process privilege, however, it is overcome by Plaintiffs' need.

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21.

Document 82: Draft dated September 23, 1999, Not for Distribution, for internal review only. Comments from a letter from Jerry Franklin to Rep. Chenoweth 3 pages. Also contains memorandum dated September 15, 1999 from Jerry Franklin to Chairman Chenoweth regarding statement re the survey and manage provision of the Northwest Forest Plan dated September 15, 1999 - 1 page.

Privileges Asserted by Defendant: Deliberative process, attorney-client and work-product. These documents are covered by the deliberative process privilege in that they are draft, predecisional, proposed comments on a draft letter. 22. Document 84: Memorandum - 1 page. From: Unknown Re: Timber sales under a preliminary injunction due to Judge Dwyer's ruling.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Contains attachments, and charts prepared by Sue Zike listing the timber sales enjoined (2 pages). One page of timber sale information data described as a September 9, 1999 e-mail from Susan Zike to one Stritch, Nancy Green et al regarding FY `99 timber sale information and sales delayed due to Judge Dwyer's ruling. Ruling: To the extent these documents were protected by the attorney-client or work-product privileges, these privileges have been waived by the disclosure of the Brouha Memorandum and deposition exhibits 31, 35A, 35B, 41A and 41D. Defendant has not demonstrated that these documents are subject to the deliberative process privilege. There is no indication on the documents themselves that they are predecisional or for what purpose the documents were compiled. They are not marked as deliberative or predecisional. The charts were prepared by Sue Zike and appear to be purely factual containing a list of the timber sales which were enjoined on August 2, 1999 and August 26, 1999. This document also reiterates the Forest Services and BLM's interpretation of the implementation of ground-disturbing activities. To the extent this document could be deemed covered by the deliberative process privilege, that privilege would be overcome by Plaintiffs' need.

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23.

Document 88: Proposal to increase the range of survey and manage SEIS, dated September 3, 1999 From: P. Hall and K. Denton

Privileges Asserted Claimed by Defendant: Deliberative process. This predecisional document considers alternatives and describes the need for a proposed action. Ruling: Covered by the deliberative process privilege. 24. Document 89: Legislative Referral Memorandum, September 8, 1999 - twelve pages From: John D. Burnim (for) Assistant Director for Legislative Reference To: Legislative Liason Officer for distribution to 1) Michael A. Levitt Department of Commerce; 2) Judy Jablow- Council on Environmental Quality; 3) Jane Lyder- Department of Interior; 4) Jon P. Jennings- Department of Justice; 5) EOP personnel including Stuart R. Kasdin, Mark A. Weatherly, Kimberly A. Newman, Donna M. Rivelli, Dinah Bear, Gary C. Reisner, Charles E. Kieffer, Robert E. Barker, and Joyce M. Wakefield. Re: Agriculture Questions and Answers on Forest Survey and Monitoring

Privileges Asserted by Defendant: Attorney-client, work-product, deliberative process. This document consists of a one-page fax cover sheet, one-page response form, and a tenpage attachment. The document discusses factual differences between Fifth, Eighth, and Eleventh United States Circuit Courts of Appeal cases. Ruling: Protected by work-product immunity. The documents were prepared in anticipation of litigation. Protected by deliberative process. This is the same document as number 1 above on the DE privilege log -- DE 89 Tab 1. 25. Document 91: Memorandum dated August 4, 1999 From: D. Craig and Sue Zike To: A. Bartuska, D. Birmingham, K. Toffenetti and J. Watts Re: ONRC Action: Rough estimate of awarded sales effected August 2nd Ruling - 18 pages.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct.

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Cover memo attaching Forest charts showing the status of sales from a list plaintiffs provided to the Government during early settlement discussions in ONRC Action. Ruling: To the extent this document is encompassed by the attorney-client privilege, that privilege has been waived by disclosure of the Brouha Memorandum and deposition exhibits 35A, 35B, 41A and 41D. To the extent this document is covered by the deliberative process and workproduct privileges, those privileges are overcome by need. 26. Document 92: E-mail dated July 23, 1999 - 1 page. From: E. Athas To: D. Bear Re: Survey and manage EIS

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Discussion of phone call with J. Nelson and P. Hall regarding alternative approaches and considerations pertinent to EIS. Ruling: Covered by deliberative process privilege. 27. Document 95: Memorandum dated December 11, 1998 From: C. Jauhola To: Dinah Bear Re: ONRC Action v. USF,BLM; timber program overview for fiscal years 19951999 and effects of surveying certain FY 1998 timber sales in Forest Service Regions 5 and 6 in western Oregon, BLM.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Forwarding final draft of briefing materials (3 documents on Northwest Forest Plan, Timber Sales Program and Survey and Manage Species issue in response to G. Frampton's request at December 2, 1998 meeting.) Ruling: To the extent these documents are subject to the attorney-client privilege that privilege was waived by production of the Brouha Memorandum, Deposition exhibits 31, 35A, 35B, 41A, and 41D. The work product protection is subject to at-issue waiver.4
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The Court, in its companion decision issued this date, found an at-issue waiver of the (continued...) 15

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To the extent this document is subject to the deliberative process, that privilege is overcome by Plaintiffs' need. 28. Document 98: Facsimile dated August 4, 1999 - 5 pages.

Privilege Asserted Claimed by Defendant: Deliberative process. Document fragment -- page 2 of a fax regarding acreage calculations. Attachment - apparent comments re meaning of 11th Cir. Court of Appeals ruling, purpose of appropriations bill and other issues. Ruling: Covered by the deliberative process privilege. 29. Document 99: Email dated August 6, 1999 - 4 pages. From: N. Marlow To: R. Kapla Re: Forwarding e-mail dated 8/6/99 from D. Bear to N. Marlow re weekly report status updates discussing survey and manage; agreement regarding national forests. Also attached is the same e-mail sent again. Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the deliberative process privilege. 30. Document 100: Email dated September 14, 1999 From: K. Escobar To: V. Viola Re: Prep for MEG trip to Oregon/Washington (ARMS 46)

Contains predecisional deliberations. Ruling: Covered by the deliberative process privilege.

(...continued) attorney-client privilege and work product protection with respect to 1) documents relating to Defendant's interpretation of the Northwest Plan (NEPA equals implementation) and 2) Defendant's decision to award the timber sales despite developments in the ONRC Action litigation. 16

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31.

Document 101: Agriculture Oversight Testimony on Survey and Management (dated September 15, 1999)

Privileges Asserted by Defendant: Attorney-client, Work-product, Deliberative process. This document is a legislative referral memorandum discussing proposed testimony before a Congressional panel. Ruling: Covered by the deliberative process privilege. 32. Document 102: A series of Questions and Answers (Q and A) (dated October 12, 1999)

Privilege Asserted by Defendant: Deliberative process. This document discusses internal Forest Service plans and matters regarding Congress. Ruling: Covered by the deliberative process privilege. 33. Document 103: "Roadless area protection internal questions and answers" "Draft" (dated April 29, 2003)

Privilege Asserted by Defendant: Deliberative process. The document discusses internal direction and future proposals. Ruling: Covered by the deliberative process privilege. 34. Document 104: A series of Questions and Answers (Q and A)

Privilege Asserted by Defendant: Deliberative process. This document discusses internal Forest Service plans and matters regarding Congress. Ruling: Covered by the deliberative process privilege. 35. Document 105: A series of Questions and Answers (Q and A)

Privilege Asserted by Defendant: Deliberative process. This document discusses internal Forest Service plans and matters regarding Congress. 17

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Ruling: Covered by the deliberative process privilege. 36. Document 106: A series of Questions and Answers (Q and A)

Privilege Asserted by Defendant: Deliberative process. This document discusses internal Forest Service plans and matters regarding Congress. Ruling: Covered by the deliberative process privilege. 37. Document 109: E-mail dated November 3, 1999 From: L. Hikida To: D. Bear and T. Boling CC: N. Middlebrook Re: Predecisional discussing upcoming briefing.

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the deliberative process privilege. 38. Document 110: E-mail dated November 10, 1999 From: D. Bear To: E. Diringer and G. Frampton Re: Settlement Agreement

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the deliberative process privilege. 39. Document 113: E-mail dated November 12, 1999 From: K. Escobar To: D. Bear Re: Washington

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. "Hot issue for Washington." Requesting D. Bear's advice on contents of communication and includes e-mail from D. Bear to K. Escobar containing advice - 1 page. Ruling: Covered by the deliberative process, attorney-client and work-product privileges.

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40.

Document 114: E-mail dated January 27, 2000 From: K. Escobar To: D. Bear Re: NYC, OH, CA.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Seeking advice and reflecting deliberations. Ruling: Covered by the deliberative process and attorney-client privilege. 41. Document 115: E-mail dated January 27, 2000 - 1 page. From: K. Escobar To: T. Brumm Re: Pacific Northwest Timber, most recent draft of a proposed statement reflecting advice and beliefs.

Privileges Asserted Claimed by Defendant: Deliberative process. Ruling: Covered by the deliberative process privilege. 42. Document 116: E-mail dated February 17, 2000 - 214 pages. From: J. Rowen To: T. Boling, D. Bear, L. Schiffer, et al. Re: A proposed rule -- a preliminary summary of public concerns.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Ruling: Covered by the deliberative process and attorney-client privileges. 43. Document 117: E-mail dated February 25, 2000 From: K. Escobar To: D. Bear Re: Seeking comment on forest and timber sale issues and containing advice.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Ruling: Covered by the deliberative process and attorney-client privileges. 19

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44.

Document 118: E-mail dated March 10, 2000 From: D. Bear To. D. Spielfogel Re: NWFP letter and suggesting a draft potential response.

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the attorney-client and deliberative process privileges. 45. Document 119: E-mail dated March 10, 2000 From: D. Spielfogel To: E. Diringer Re: NWFP letter, transmittal of suggested response drafted by D. Bear

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Contains predecisional deliberative information. Ruling: Covered by the deliberative process privilege. 46. Document 120: E-mail dated March 10, 2000 From: D. Bear To: E. Diringer cc: D. Spielfogel Re: NWFP letter forwarding 3-10-00 e-mail from D. Bear to D. Spielfogel

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Ruling: Covered by the deliberative process and attorney-client privileges (same as 118 above). 47. Document 121: E-mail dated June 6, 2000 From: K. Escobar To: D. Bear Re: Washington State "Hot Issues"

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct.

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Requesting that D. Bear prepare a section of a report and forwarding e-mail dated 6-6-00 from D. Secora to E. Diringer, N. Marlow, B. Violo, E. Athas, D. Bear, J. Jablow, et al. cc'd G. Frampton - 3 pages containing advice and deliberative, predecisional information Ruling: Covered by the deliberative process and attorney-client privileges. 48. Document 122: E-mail dated June 6, 2000 - 1 page. From: D. Bear To: K. Escobar Re: Washington state "Hot Issues" suggesting changes to draft on roadless and containing advice.

Privileges Asserted by Defendant: Deliberative process, attorney-client, work-product. Ruling: Covered by the deliberative process and attorney-client privileges. 49. Document 125: E-mail dated August 24, 2000 From: N. Hurst To: E. Boling Re: "Hope this helps! WA/OR Issues"

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Requesting information from T. Boling regarding forest plan, survey and manage, and timber sales/protest issues. Ruling: Covered by the attorney-client privilege. 50. Document 126: E-mail dated October 2, 2000 From: T. Croote To: L. Milkman, J. Watts, P. Coppleman, D. Bear Re: E-mail one of 163 pages regarding changes to the forest planning rule, attaching revisions to the forest planning rule. Attachments: 1) addition to text of planning rule, 2) ARMS 41 attachment; and 3) 136 pages text of final rule possible draft -- appears to be a draft.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Ruling: Covered by the deliberative process and attorney-client privileges. 21

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51.

Document 127: E-mail dated October 3, 2000 From: R. Holthausen To: R. Bosch CC: E. Boling, et al. Re: Contains the first 5 pages of 8.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Contains questions, opinions and deliberative material. Attachment - 1 (3 pages). Draft briefing SEIS for amending survey and manage protection buffer and other mitigation measures, standards and guidelines (October 18, 2000). Ruling: Covered by the deliberative process privilege. 52. Document 131: E-mail dated August 6, 1999 From: N. Marlow To: R. Capla Re: Weekly report, forwarding e-mail dated 8/6/99 from D. Bear to N. Marlow re weekly report.

Privileges Asserted Claimed by Defendant: Deliberative process, attorney-client, workproduct. Ruling: Covered by the deliberative process and attorney-client privileges. 53. Document 132: Draft statement dated September 15, 1999 From: J. Lyons To: Subcommittee on Forests and Public Land Re: Draft statement of James R. Lyons, Undersecretary Natural Resources and Environment, U.S. Dept. of Agriculture regarding the survey and management requirements to the President's Northwest Plan before the Subcommittee on Forests and Public Land Management Committee on Energy and Natural Resources, U.S. Senate.

Privileges Asserted Claimed by Defendant: Deliberative process. Ruling: Covered by the deliberative process privilege.

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54.

Document 133: A series of Questions and Answers (Q and A) for Roadless Area Protection (dated April 29, 2003)

Privilege Asserted by Defendant: Deliberative process. This document discusses internal Forest Service plans and matters regarding Congress. Ruling: Covered by the deliberative process privilege. 55. Document 134: A series of Questions and Answers (Q and A) Attachment

Privilege Asserted by Defendant: Deliberative process. Ruling: Covered by the deliberative process and attorney-client privileges. 56. 57. Document 135: Identical to Document 133, above. Document 136: A series of Questions and Answers (Q and A) Attachment

Privilege Asserted by Defendant : Deliberative process. Ruling: Covered by the deliberative process and attorney-client privileges. 58. 59. Document 137: Identical to Document 133, above. Document 138: A series of Questions and Answers (Q and A) for Roadless Area Protection

Privilege Asserted by Defendant: Deliberative process. This document discusses internal Forest Service plans and matters regarding Congress. Ruling: Covered by the deliberative process privilege. 60. 61. 62. 63. Document 140: Identical to Document 133, above. Document 141: Identical to Document 138, above. Document 142: Identical to Document 133, above. Document 143: Identical to Document 138, above. 23

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64.

Document 145: E-mail dated October 18, 1999 From: B. Rossman To: W. Warren Re: FY 2000 Interior objectionable language, forwarding updated electronic version of our "objectionable riders "document"

Privilege Asserted by Defendant: Deliberative process Ruling: Covered by the deliberative process privilege. 65. Document 146: E-mail dated October 20, 1999 From: W. Warren To: K. Hobbs Re: 2 of 4 pages regarding "Comments of wildlife survey, rider and conference report.

Privilege Asserted by Defendant: Deliberative process Ruling: Covered by the deliberative process privilege. 66. Document 147: E-mail dated October 20, 1999 From: W. Warren To: K. Hobbs Re: FY 2000 Interior objectionable language forwarding e-mail dated 10/18/99 from B. Rossman to W. Warren re FY 2000 Interior objectionable language

Privilege Asserted by Defendant: Deliberative process. Ruling: Covered by the deliberative process privilege 67. Document 148: Interior and Related Agencies Appropriations Bill Objectionable Language Riders

Privilege Asserted by Defendant: Deliberative process. This document discusses language wanted in proposed bills, and is not relevant to this action. Ruling: Covered by the deliberative process privilege.

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68.

Document 149: E-mail dated February 25, 2000 From: K. Escobar To: N. Marlow Re: Feb. 24, 2000 Salmon Issues

Privilege Asserted Claimed by Defendant: Deliberative process. Contains predecisional opinions, advice and legal opinion Ruling: Covered by the deliberative process privilege. 69. Document 150: Legislative Referral Memorandum

Privileges Asserted by Defendant: Attorney-client, Work-product, Deliberative process. This document discusses proposed remarks to a congressional Subcommittee. Ruling: Covered by the deliberative process and attorney-client privileges. 70. Document 151: E-mail dated June 8, 2000 From: D. Bear To: Michael Hickey, et al. Re: upcoming meeting

Privilege Asserted Claimed by Defendant: Deliberative process. Issues for discussion Ruling: Covered by the deliberative process privilege. 71. Document 152: E-mail dated June 9, 2000 From: D. Bear To: Michael Hickey, et al. Re: Upcoming meeting and forwarding e-mail described in document 151.

Privilege asserted by Defendant: Deliberative process Ruling: Covered by the deliberative process privilege.

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72.

Document 153: Email reminder for hot issues for Vice President August 25, 2000

Privilege Asserted by Defendant: Deliberative process. This document discusses issues for briefing the Vice President. Ruling: Covered by the deliberative process privilege. 73. Document 154: "Hot Issues draft briefing paper on Columbia river salmon issues"

Privilege Asserted by Defendant: Deliberative process. This document discusses proposed plans for conservation. Ruling: Covered by the deliberative process privilege. Defendant's July 29, 2005 and August 18, 2005 Amended "DE" Privilege Logs Defendant submitted the declarations of two litigation coordinators, Susan M. Zike and Brian E. Stone as justification for Defendant's attorney-client and work-product privilege claims in the amended "DE" privilege logs. Susan M. Zike has been employed as the Regional Litigation Coordinator for the Pacific Northwest Region (Region 6) of the Forest Service, in Portland, Oregon, since 1991. Decl. of Susan M. Zike (Oct. 14, 2005) ¶ 1 (Zike Decl.). As a Litigation Coordinator, Ms. Zike's duties consisted of acting as a liaison between the DOJ and the U.S. Attorneys' Offices for Oregon and Washington, the USDA Offices of General Counsel in Portland, San Francisco, and Washington, D.C., and multiple Forest Service offices, in connection with lawsuits filed against the Forest Service in Region 6. Zike Decl. ¶ 3. Ms. Zike explained: In my capacity as Litigation Coordinator, I regularly confer with agency and trial counsel upon litigation matters and then disseminate their advice and recommendations to Forest Service personnel. I also work with Forest Service staff to respond to requests for information from such counsel, including preparation of litigation reports, responses to discovery, and responses to other inquiries that arise in litigation. On some occasions, I transmit the foregoing information to counsel under a cover document containing my explanation of the information and/or my recommendations for its use. As a Litigation Coordinator, I also perform case management activities, which primarily involve providing information to Forest Service officials, 26

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such as forest supervisors, directors, and regional foresters, about potential or current litigation, legal strategies, and case assessments. Zike Decl.¶ 4. According to her position description which is titled "Paralegal Specialist," Ms. Zike "serves as the Regional Litigation and FOIA [Freedom of Information Act] Coordinator responsible for preparing Regional evaluations to legal challenges resulting from lawsuits against the Agency . . . ." Attachment to Zike Decl. (Zike Att.). Ms. Zike began working on the ONRC Action lawsuit shortly after it was filed and was designated by the R5 and R6 Regional Foresters as the "primary Forest Service contact in the field for the Department of Justice" in mid-July 1998. Zike Decl. ¶ 5. The Oregon State Director for BLM asked Ms. Zike to facilitate and coordinate communications between that agency, the Forest Service, and the Department of Justice. Ms. Zike was also responsible for informing the Office of the Chief of the Forest Service about the ongoing status of ONRC Action, and participated in the development of Forest Service and BLM responses to the legal issues raised in ONRC Action. Id. This entailed having discussions with various Forest Service, BLM and the Northwest Forest Plan Regional Ecosystem Office (REO) personnel regarding the Government's response and preparing the litigation report for the DOJ. Id. ¶ 6. Ms. Zike also "regularly developed briefing papers for case management meetings, which generally were attended by the Regional Foresters and their staff, the [Office of the Chief of the Forest Service] and staff, the BLM Oregon State Director and her staff, the REO and staff, and agency and trial counsel." Id. In the briefing papers, Ms. Zike sometimes assessed "[DOJ] and agency counsel thinking regarding the implications and risks of taking certain legal positions and made recommendations for a course of action." Id. Throughout the litigation, the Regional Foresters and their staff consulted Ms. Zike on the status of the case and on related policy direction for purposes of making sale offerings and awards. Zike Decl. ¶ 9. Toward the final stages of litigation, Ms. Zike and her paralegal collected "vast amounts of information concerning timber sales in Regions 5 and 6, including dates of environmental analysis, the identity of persons who filed administrative appeals of the sale decisions and the issues raised in those appeals, the identity of purchasers, and the status of harvesting operations." Zike Decl. ¶ 10. This information was compiled, processed, and transmitted to DOJ and agency counsel in response to their requests for information. Id. Ms. Zike also participated in agency preparations for settlement discussions. Id. Brian E. Stone served as a Litigation Coordinator for Region 5 on the ONRC Action lawsuit. Decl. of Brian E. Stone (Oct. 13, 2005) ¶¶ 1-2 (Stone Decl. II). Mr. Stone explained his duties: [M]y official position in Region 5 was Section Head for Timber Sale Preparation and Valuation. However, from approximately 1991 onwards, I functioned informally as a litigation coordinator for various lawsuits arising in the region . . . . 27

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In my capacity as a litigation coordinator . . . I was involved in the [ONRC Action]. . . . I worked on this litigation from early 1998 until my retirement [in May, 2003]. My work primarily involved obtaining information or documents from Region 5 in response to requests from attorneys employed by the United States Department of Justice ("USDOJ") or the United States Department of Agriculture ("USDA"). Generally, I was not in direct contact with these Government attorneys and I did not work for them. Rather, my primary contact was Sue Zike, who was the Litigation Coordinator for Region 6, at the time of the ONRC Action. I believe that it is accurate to describe my role as that of a liaison between Ms. Zike and Forest Service personnel within the Region for the primary purpose of disseminating requests for information or documents and obtaining responsive information or documents. From time to time, I also informally apprised Forest Service personnel of developments in the litigation. Stone Decl. II ¶¶ 1, 3-4.5 Although Defendant purported to assert the deliberative process privilege for two documents in its DE privilege log, DE 8 Tab 14 and DE 22 tab 14, Defendant has not filed a declaration from the head of the agency or his or her delegee invoking the privilege. As such, the deliberative process privilege cannot be sustained for these documents. The following are the Court's rulings with respect to the documents described in Defendant's amended "DE" privilege logs based upon in camera review. 1. Document DE 89 Tab 1: Legislative Referral Memorandum, September 8, 1999 - twelve pages From: John D. Burnim (for) Assistant Director for Legislative Reference To: Legislative Liason Officer for distribution to 1) Michael A. Levitt Department of Commerce; 2) Judy Jablow- Council on Environmental Quality; 3) Jane Lyder- Department of Interior; 4) Jon P. JenningsDepartment of Justice; 5) EOP personnel including Stuart R. Kasdin, Mark A. Weatherly, Kimberly A. Newman, Donna M. Rivelli, Dinah Bear, Gary C. Reisner, Charles E. Kieffer, Robert E. Barker, and Joyce M. Wakefield. Re: Agriculture Questions and Answers on Forest Survey and Monitoring

The declarations of Ms. Zike and Mr. Stone do not address the documents listed in the privilege logs on a document-by-document basis. 28

5

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Privileges Asserted by Defendant: Attorney-client, Work-product, Deliberative process. This document consists of a one-page fax cover sheet, one-page response form, and a tenpage attachment and discusses differences between Fifth, Eighth, and Eleventh United States Circuit cases. Ruling: Protected by work-product immunity. The documents were prepared in anticipation of litigation. Protected by deliberative process. Note: This same document is also located in the binders of the CEQ in camera documents, labeled as Document 89. 2. Document DE 0305 & 0306 Tab 6: E-mail - No date - one page From: Edward L. Matthews To: Susan Zike Cc: bstone (litigation coordinator), ematthews Re: ONRC Action: WO briefing paper

Privilege Asserted by Defendant: Work-product. The e-mail provides updated information on Happy Thin and Upper South Fork timber parcels. Ruling: Contains facts, not attorney opinion. To the extent this document is work product, the privilege was waived under the at-issue waiver. Alternatively, the work-product protection is overcome by the need of the Plaintiffs. 3. Document DE 310 Tab 6: Letter/E-mail - June 17, 1999- one page From: Ed Matthews, Contracting Officer To: unknown, but document reads "Confidential Attorney-Client Privilege" across the top of the page Re: Status of Upper South Fork Heli TS and Jack Heli TS

Privilege Asserted by Defendant: Work-product. Document discusses status of Upper South Fork Heli TS and Jack Heli TS by providing the dates of meetings and actions taken at the meetings. Ruling: Not work-product. Although the document reads "Attorney-Client Privilege" across the top, no other information is provided about the document's recipients or why the document was prepared.

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4.

Document DE 312 Tab 6: E-mail - No date - one page From: Edward L. Matthews, Contracting Officer To: Susan Zike Cc: bstone (litigation coordinator), ematthews Re: Happy Thin Auction Date

Privilege Asserted by Defendant: Work-product. The e-mail acknowledges receipt of documents from the litigation coordinator, discusses a proposed auction date on Happy Thin and discusses the validity of a notice as well as an update on Upper South Fork. Ruling: To the extent this document is work product, it is nonopinion and subject to the atissue waiver. Alternatively, the work-product protection is overcome by the need of the Plaintiffs. 5. Document DE 457, Tab 6: E-mail dated March 1, 1999 From: J. Zander To: B. Stone and J. Brogan Re: Edited table of delayed sales

Privilege asserted by Defendant: Work-product. This e-mail references a telephonic conference with DOJ counsel and matters to be raised at the conference call. Ruling: Protected work product. To the extent this document is work product, it is encompassed within the at-issue waiver. 6. Document DE 683-687 Tab 6: Plaintiffs' Sale List submitted for settlement negotiations in ONRC Action v. USFS, BLM - April 5, 1999 - 9 pages.

Privilege Asserted by Defendant: Work-product. The document consists of a table listing the names of timber sales in the Western District of Washington (from Plaintiffs' Sale List). Each page includes the statement: "Confidential Subject of Settlement Negotiations FRE 408." Under the heading of "status" it lists some of the sales as "awarded." Ruling: Not protected work product. There is no indication of who completed this document or to whom it was disseminated.

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7.

Document DE 983,Tab 6: Email dated December 17, 2000 From: S. Grimes To: L. West, S. Carter, J. Flatten, J. Murray, W. Hoffman Re: forwarding charts of timber sales decisions by forestry relying on November 1996 "Implement Memo"

Privilege Asserted by Defendant: Work-product. Document entitled Region 5 and 6 Timber Sales, ONRC Action v. USFS, plaintiff sale list submitted April 5, 1999 - 9 pages. Stamped "Confidential Subject of Settlement Negotiations FRE 408." Ruling: Defendant has not established that this document is subject to the work-product protection. In the event this document could be deemed to be work product, the charts do not contain opinion but rather purely contain factual material, and the protection is overcome by Plaintiffs' need. This appears to be a settlement document which Defendant had agreed to produce. 8. Document DE 1353, Tab 6: E-mail From: Sue Zike To: Susan L. Carter, et al.

Privilege Asserted by Defendant: Attorney-client and Work-product. Attaching a summary chart and notes about at-risk sales and lawsuit. Chart is dated 7/13/99. Ruling: The attorney-client privilege was waived for this document by Defendant's voluntary production of the Brouha Memorandum, and Deposition Exhibits 35A, 35B, 41A and 41D. The document is covered by the at-issue waiver. To the extent this document is work product, the privilege is overcome by Plaintiffs' need. 9. Document DE 1538-1556 Tab 6: E-mail and Chart - no date -twelve pages From: Susan Zike (litigation coordinator) To: Robert J. Devin, Susan L. Carter, Jan Flatten, Jamia R. Hansen Murray Re: ONRC Action; Sale list provided to ONRC (Oregon Natural Resources Council) (their April 5, 1999 list)

Privilege Asserted by Defendant: Work-product. The e-mail indicates that the attached chart was shared by DOJ with the Oregon Natural Resources Council.

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Ruling: Not protected work product because the Government shared the information with the plaintiffs in ONRC Action. 10. Document 1707-1708 Tab 6: E-mail, no date From: Susan Zike (litigation coordinator) To: Susan L. Carter, Jan Flatten, Jamia R. Hansen Murray, Ward Hoffman, Fred Dorn Re: ONRC Action lawsuit process to determine which sales to award

Privilege Asserted by Defendant: Work-product. This e-mail indicates that an attached document describes the process to determine which sales, if any, to award in the near future. The attached memo is not provided. Ruling: To the extent this document is work product, it is subject to the at-issue waiver. Alternatively, the document contains no opinion, and the work-product protection is overcome by the need of the Plaintiffs. 11. Document DE 1810, Tab 6: E-mail dated November 23, 1998 From: S. Zike To: S. Carter, J. Flatten, J. Murray, W. Hoffman and F. Dom

Privileges Asserted by Defendant: Attorney-client privilege, amended to include workproduct. Described as "e-mail regarding litigation position and award of sales." Ruling: This document appears to be attorney-client privileged, but this privilege was waived by the Defendant's voluntary disclosure of the Brouha Memorandum, and Deposition Exhibits 31, 35A, 35B, 41A and 41D. To the extent this document can be deemed work product, the protection is overcome by Plaintiffs' need. 12. Document DE 203 Tab 4: E-mail - January 21, 1999 - one page From: Brian E. Stone (litigation coordinator) To: ematthews, klamath Re: Meeting

Privilege Asserted by Defendant: Work-product.

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This e-mail forwards an e-mail from Susan Zike (litigation coordinator) to Brian Stone (litigation coordinator), which describes a plan to discuss sales with attorneys at an upcoming meeting. Ruling: Protected work-product. To the extent this document is work product, it is subject to the at-issue waiver. Alternatively, the work-product protection is overcome by the need of the Plaintiffs. 13. Document DE 204, Tab 4: E-mail dated January 22, 1999 From: Brian Stone To: Distribution List

Privilege Asserted by Defendant: Work-product Described as "one-page e-mail string forwarding attachments (not attached) and describing the process Region 6 utilized to determine which sales to award, describing questions needed to be answered before awarding of sales, from Sue Zike (Region 6). Prepared in anticipation of litigation." Discusses the timing of the sales and a potential telephonic conference with R6, DOJ and BLM "regarding which sales should be going forward and their respective strengths and weaknesses . . . relating to this litigation." Ruling: Although Defendant does not believe this document is subject to the attorney-client privilege, it appears to be subject to this privilege and within the scope of the waiver caused by Defendant's voluntary production of the Brouha Memorandum as well as Deposition Exhibits 31, 35A, 35B, 41A and 41D. To the extent this document is work product, it is subject to the at-issue waiver. 14. Document DE 229 Tab 4: E-mail - February 23, 1999 - one page From: Edward L. Mattthews To: Susan Zike (litigation coordinator) Cc: bstone (litigation coordinator), ematthews, klamath Re: r5-6_proposed_awards.rtf

Privilege Asserted by Defendant: Work-product. The e-mail references a proposed letter. Ruling: To the extent this document is work product, it is subject to the at-issue waiver.

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15.

Document DE 230, Tab 4: E-mail dated February 22, 1999 (1 page) From: Sue Zike To: Ed Matthews

Privileges Asserted by Defendant: Work-product and attorney-client privilege. Transmitting draft letter to DOJ regarding action to be taken on certain sales after 3/1/99 (not attached). Ruling: Covered by work-product privilege. Not encompassed by at-issue waiver. 16. Document DE 284, Tab 4: E-mail dated March 31, 1999 From: Brian Stone To: Distribution List

Privileges Asserted by Defendant: Work-product, attorney-client. Two-page e-mail discussing specific timber sales, transmitting a 10-page 3/30/99 Region 5 Timber Sales chart. Chart is a spread sheet containing analysis of timber sales which Defendant claims was prepared in connection with the ONRC Action litigation. Chart is marked "attorneyclient privileged, do not distribute." Ruling: During an October 7, 2005 hearing the Court ruled that this document was not subject to the attorney-client privilege. Tr. at 73-77. To the extent this document could be deemed work product, it does not contain opinion, this protection is overcome by Plaintiffs' need. 17. Document DE 305, Tab 4: E-mail with attachment dated April 5, 1999 From: Sue Zike To: Distribution List (1-page)

Privileges Asserted by Defendant: Work-product, attorney-client. E-mail discussing potential issues relating to timber sales and ONRC Action transmitting two 9-page 3/30/99 Region 6 timber sales chart. Chart is a spread sheet analysis of timber sales prepared in connection with ONRC Action and is marked attorney-client privileged do not distribute. Ruling: The Court ruled that the Defendant did not establish the elements of the attorneyclient privilege. Tr. (Oct. 7, 2005) at 76-77. To the extent that this document can be deemed work product, it does not contain opinion, and the protection is overcome by Plaintiffs' need. 34

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18.

Document DE 315 Tab 4: E-mail and attached charts - 4/8/99 - fifteen pages From: Susan Zike To: Distribution list unavailable Re: ONRC Action: promised chart attached.

Privilege Asserted by Defendant: Work-product.6 The chart -- Region 5 and 6 Timber Sales; Plaintiffs' Sale List Submitted April 5, 1999 -consists of a chart of R5 and R6 timber sales, including information such as: sale name, NEPA doc date, whether Plaintiff appealed, Ad date, Auction date, Award date, status of sale, and whether notice had been provided to Plaintiffs. The bottom of each page states: "Confidential Subject to Settlement Negotiations F.R.E. 408." Ruling: Not work product. Alternatively, work-product protection overcome by need. Although prepared in anticipation of litigation/settlement, the Chart contains factual information about the sales. It does not reveal the Government's strategy, thought processes, or attorney opinion. Any attorney-client privilege was waived by Defendant's voluntary production of the Brouha Memorandum and Deposition Exhibits 31, 35A, 35B, 41A and 41D. This document is also subject to the at-issue waiver and Defendant's agreement to produce settlement documents. 19. Document DE 330 Tab 4: C