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: Jul 8, 2004

Civil Action No. 99-CV-2496 (GK) (D.D.C. Jul. 8, 2004)

Opinion

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

July 8, 2004

Sharon Y. Eubanks, Esq. and Stephen D. Brody, Esq., counsel for the United States.

REDACTED FOR PUBLIC FILE REPORT AND RECOMMENDATION # 164 OF THE SPECIAL MASTER [Joint Defendants' Third EOP/PRA Privilege Challenge]

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

Before the Special Master are Joint Defendants'¹ Third Motion to Compel Certain Documents Listed on Plaintiff's Executive Office of the President and Presidential Records Act Privilege Logs, Plaintiff's Memorandum in Opposition, Joint Defendants' Reply, and Plaintiff's Surreply. Upon consideration of the aforementioned, the Declarations offered in support of the privilege claims, the exhibits submitted in support of and in opposition to the Motion, and upon an in camera review of the 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., R.J. Reynolds Tobacco Company, Brown Williamson Tobacco Corporation (individually and as successor by merger to the American Tobacco Company), Lorillard Tobacco Company, Altria Group, Inc., British American Tobacco (Investments) Ltd., The Counsel for Tobacco Research — U.S.A., Inc., and The Tobacco Institute.

I. Background

Joint Defendants originally challenged 441 documents listed on Plaintiff's EOP/PRA privilege logs. Over a period of three months, the parties held eight meet and confer sessions.² Defs.' Mem. in Supp. at 3-4. Plaintiff ultimately released 111 documents, and produced 37 documents in redacted form. Id. at 6-7. In their Motion, Joint Defendants challenge 300 documents on Plaintiff's privilege logs.

2 Joint Defendants assert that the length of the meet and confer process was due to the fact that Plaintiff did not provide accurate privilege logs and because Plaintiff provided the presidential representatives the opportunity to re-review documents over the 42-day period granted to the representatives pursuant to Executive Order # 13233, "Further Implementation of the Presidential Records Act," Fed. Reg. 56025 (Nov. 1, 2001). Defs.' Mem. in Supp. at 4-6.

Plaintiff claims the deliberative process privilege for all 300 documents at issue. In addition, Plaintiff claims the presidential communications privilege for 63 documents, the attorney-client privilege for eight documents, and work product protection for three documents.

II. Preliminary Arguments and Recommendations

a. Arguments Regarding Assertion of the Presidential Communications Privilege

In this round of challenges, the primary issue on which the parties focus is the propriety of Plaintiff's presidential communications privilege claims.³ Joint Defendants note that the presidential communications privilege is "`limited to materials connected to presidential decision-making, as opposed to other executive branch decision-making.'" Defs.' Mem. in Supp. at 11-12, quoting In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997). Moreover, while the presidential communications privilege extends beyond communications with the President to "communications made by presidential advisers in the course of preparing advice for the President," the privilege is to be "construed as narrowly as is consistent with ensuring that the confidentiality of the President's decision-making process is adequately protected." Id. at 12, quoting In re Sealed Case, 121 F.3d at 745. Joint Defendants submit that the privilege may only be extended to communications

3 The Special Master need not address the parties' arguments as to whether the Challenged Documents generated from the OMB were "adopted" by the Administration as the Court has instructed that, in light of the fact that OMB serves an advisory function within the Executive Office of the President and is not a traditional "line agency" with regulatory or law enforcement responsibilities, "the OMB documents . . . do not fit within the framework of the `working law' analysis" and that the Special Master should therefore "focus only on whether the documents in this RR meet the two core requirements of the deliberative process privilege, that is whether they are predecisional and deliberative." United States v. Philip Morris USA Inc., 218 F.R.D. 312, 321-22 (D.D.C. 2003).

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, . . . [and not communications by] every person who plays a role in the development of presidential advice.

Id., quoting In re Sealed Case, 121 F.3d 752. Joint Defendants assert that Plaintiff attempts to include within the privilege "`a large swath of the executive branch' communications" without indicating how these individuals "are `immediate advisors' or are otherwise responsible for `investigating and formulating the advice to be given the President on the particular matter to which the communications relate.'" Id. at 13, quoting In re Sealed Case, 121 F.3d at 749-50, 752. Joint Defendants contend that Plaintiff's broad application defeats the intent of the Circuit Court to prevent the extension of the privilege beyond that required to accomplish the purpose of the privilege. Id.

Joint Defendants argue that Plaintiff attempts to "`shield information regarding governmental operations that do not call ultimately for direct decision-making by the President'" by attempting to bring within the presidential communications privilege:

(1) documents allegedly containing information for purposes of advising the Vice-President or other individuals because they may act or have acted as a proxy for the President; (2) documents allegedly containing information for purposes of advising high-level Administration official[s] who would be speaking on behalf of the Administration as to the Administration's positions as a proxy for the President; and (3) communications for purposes of determining general administration policy based on documents discussing administration position[s] on proposed legislation. Plaintiff even asserted the privilege when it was unable to determine the purpose of the communication and unable to determine who would be giving a speech discussed in the document.

Id. at 13-14 (internal footnotes and quotations omitted). Joint Defendants contend that Plaintiff has adopted a "we'll tell you when the advisor is high enough" guideline, and has "made no verifiable showing" that it has met the requisite standards for the privilege. Id. at 17.

In its Opposition Memorandum, Plaintiff first contends that "[t]he Special Master and the Court should decline to consider Joint Defendants' challenge to the scope and the applicability of the presidential communications privilege because, in violation of Order #51, Joint Defendants did not identify these issues as a basis for their challenge to the United States['] assertions of the presidential communications privilege in their initial notice to the United States." Opp. at 2. Plaintiff submits that Order #51 ¶ II.C.1(c) requires parties to identify all bases for challenges to privilege assertions, and that Joint Defendants' only basis for challenge initially was that their need outweighed Plaintiff's interest. Id.

Plaintiff further argues that, in the event the Special Master deems it appropriate to consider these arguments, Joint Defendants misconstrue the applicable legal standards. Id. at 2-3. Noting that "the presidential communications privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution,"⁴ and that, because "the Supreme Court requires that courts afford great deference to an assertion of the presidential communications privilege," documents subject to the assertion of the presidential communications privilege are "presumptively privileged." Id. at 3-4, citingJudicial Watch, Inc. v. United States Department of Justice, 259 F. Supp. 2d 86, 90 (D.D.C. 2003).

4 Opp. at 3, citing Judicial Watch, Inc. v. United States Department of Justice, 259 F. Supp. 2d 86 (D.D.C. 2003) (quoting United States v. Nixon, 418 U.S. 683, 708 (1974)) (internal quotations omitted).

Plaintiff emphasizes that the scope of the privilege must be broad enough to serve its purpose, and notes that this Circuit has recognized that:

[C]ommunications made by presidential advisers in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President. Given the need to provide sufficient elbow room for advisers to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisers solicited and received from others as well as those they authored themselves. The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential adviser's staff, since in many instances advisers must rely on their staff to investigate an issue and formulate the advice to be given the President.

Opp. at 4, quoting In re Sealed Case, 121 F.3d at 752 (emphasis in Opp. Mem.).

Plaintiff takes issue with Joint Defendants' focus on the number of individuals involved in the communications claimed protected by the presidential communications privilege. It argues that the scope of the privilege "is not subject to determination based on the notion of a numerical limitation," and that the applicable case law does not "suggest that high-level White House advisers and their staff be subject to a mechanical limitation on the number of individuals within the Executive Office of the President or elsewhere with whom they may consult or for whom they may request information to be used in developing their advice and recommendations for the President." Id. at 6.

Plaintiff asserts that "the fact that presidential communications documents subject to this challenge involve 275 individual participants . . . is not remarkable. Almost every individual identified by Joint Defendants as involved in the challenged communications is (or was) an employee of the Executive Office of the President, and the vast majority of the identified EOP employees were members of the staff of the White House Office of the EOP or the Office of Policy Development of the EOP." Id. at 6-7. Plaintiff further asserts that "each component of the Executive Office of the President, unlike other Executive Branch agencies, exists solely or in large part for the purpose of providing advice and assistance to the President in the formulation and implementation of his policies." Id. Plaintiff contends that "established case law permits White House advisers to communicate in confidence with individuals who are not also members of an immediate White House adviser's staff in the course of developing advice and recommendations for the President." Id. at 8. Without this flexibility, Plaintiff argues, "one of the primary and essential purposes of the presidential communications privilege — permitting White House advisers to seek information and advice from individuals with expertise on a particular matter in order to develop sound and candid advice for the President — would be defeated." Id.

Plaintiff rejects Joint Defendants' contention that it should be able to define all individuals whose communications might qualify for the privilege, asserting that it "cannot predict with whom White House advisers may choose to consult in the course of" gathering information to assist in developing advice for the President, "and Joint Defendants' suggestion that such a bright-line cut-off is appropriate demonstrates that Joint Defendants misunderstand the need for privilege assertions to be evaluated individually in light of the purposes for which documents were created." Id. at 9. Plaintiff further contends that "when a high-level adviser to the President or a staff member solicits information or analyses from others to be used in the course of developing a recommendation for the President, the information he or she receives likely will be addressed to the high-level adviser rather than directly to the President. Thus, it is not controversial that communications or documents developed in the course of preparing information solicited by high-level advisers, such as the Vice President, the Chief of Staff, or the head of the Domestic Policy Council, can be covered by the privilege."Id. at 9-10.

In reply, Joint Defendants initially contend that, with respect to privilege challenges, "[a]ll that is required is `the legal and factual bases on which the party believes that the document is not privileged' and `the factual and legal bases for any exceptions to privilege that the party in good faith believes apply' be stated in the final motion to compel and memorandum in support thereof." Reply at 2, quoting Order #51 at 18-19. They also note that "[i]t is well settled in this case that even raising claims for the first time during the meet and confer process, but before filing of the motion, is timely and not prejudicial to the other side." Id. at 3, citing RR #80 at 44-46.

Joint Defendants assert that Plaintiff has improperly invoked the presidential communications privilege. They contend that "[a]ny extension of the privilege to communications not involving the President himself is to be `construed narrowly as is consistent with ensuring the confidentiality of the President's decisionmaking process is adequately protected.'" Id. at 4, quoting In re Sealed Case, 121 F.3d at 745.

Joint Defendants analyze the two cases that have examined the scope of the presidential communications privilege and have upheld the extension of the privilege to communications not directly involving the President and note that both "involved advice given to the President regarding the scope of a `quintessential and nondelegable Presidential power.'" Id. at 5, citing Judicial Watch, 259 F. Supp. 2d at 91 (the President's pardoning power); In re Sealed Case, 121 F.3d at 752-53 (the President's appointment and removal power).<sup>5</sup> Joint Defendants argue that "[t]aken together, these cases demonstrate that it was the non-delegable quality of a uniquely presidential power that offered the `assurance that even if the President were not a party to the communications over which the government is asserting presidential privilege, these communications nonetheless [were] intimately connected to his presidential decisionmaking.'" Id. at 6, quoting In re Sealed Case, 121 F.3d at 753. They assert that "the advice to which the communications lead must ultimately call for `direct decisionmaking by the President,' because only the President can exercise a `quintessential and nondelegable Presidential power.'" Id. at 7 (emphasis in Reply).

5 Joint Defendants assert that the In re Sealed Case, the court found crucial to its extension of the power the fact that "the President himself must directly exercise the presidential power of appointment or removal," which is "one of the President's core functions under Article II of the Constitution" and a power that is nondelegable, as opposed to presidential powers and responsibilities that "can be exercised or performed without the President's direct involvement, pursuant to a presidential delegation of power or statutory framework." Reply at 6, quoting In re Sealed Case, 121 F.3d at 752-53. "Likewise, Judge Kessler, in Judicial Watch, extended the presidential communications privilege to certain communications that did not directly involve the President only after recognizing that the pardoning power, the subject of the privileged communications, was a `quintessential and nondelegable Presidential power.'" Id., quoting Judicial Watch, 259 F. Supp. 2d at 91.

Here, Joint Defendants contend, Plaintiff only "seeks to protect communications that merely assist the President or his advisors in determining a consistent tobacco policy," which is not rooted in any quintessential and nondelegable Presidential powers. Reply at 7. They contend that the deliberative process privilege extends to executive branch decisionmaking in general, and that the presidential communications privilege "is designed to protect `specifically . . . decisionmaking of the President.'" Reply at 8, quoting In re Sealed Case, 121 F.3d at 745. "This dichotomy secures the greatest protection of those communications leading to the advising of the President on matters that will generally have to do with the core functions of the President's position (such as the proper exercise of the pardoning power or the appointment and removal power), and lesser protection under the deliberative process privilege for those communications between advisors about more routine policy determinations that are made by executive branch employees in the normal course of executive branch business." Id. According to Joint Defendants, the communications at issue here are, "at best, presidential powers and responsibilities that are akin to the `duty to take care that the laws are faithfully executed,' and therefore `can be exercised or performed without the President's direct involvement, pursuant to a presidential delegation of power or statutory framework.'" Id. at 8-9, quoting In re Sealed Case, 121 F.3d at 752-53.

Joint Defendants contend that they do not suggest, as Plaintiff contends, that there should be some type of limitation on the number of individuals with whom the President should be able to consult:

The President and his advisors can and should consult with whomever is necessary to the proper formulation of policy or to getting the specific matter resolved. The erroneous assumption underlying Plaintiff's argument is that non-application of the privilege will somehow prevent the President and his advisors from actually consulting those people. The sheer volume of people whose communications Plaintiff would protect under the privilege shows that Plaintiff holds little regard for the rights of the citizenry to know what its government is doing.

Reply at 13. Joint Defendants argue that the Circuit Court in In re Sealed Case "was not so quick to dismiss the extension of this unique privilege to communications of numerous people that do not directly involve the President." Id. at 14.

Plaintiff filed a surreply, asserting first that Joint Defendants' argument that the presidential communications privilege cannot apply to communications that do not directly involve the President unless they involve a quintessential and non-delegable Presidential power "is based on a specious and illogical reading of the case law." Surreply at 1. Instead, Plaintiff contends, the Circuit Court in In re Sealed Case focused only on the issue of "`how far down the line' of advisers the privilege extends, not to what types of presidential decisionmaking falls [sic] within the scope of the privilege."Id. at 2. Plaintiff asserts that "the court stated that the nature of the presidential decisionmaking at issue, the appointment and removal power, provided strong evidence that the particular documents in question were sufficiently connected to the President to come under the protection of the privilege. Nothing in the passage (or elsewhere in the opinion) indicates that an assertion of the privilege to communications not directly involving the President cannot be supported by other evidence demonstrating that the communication was connected to presidential decisionmaking." Id.

Plaintiff further contends that a reasonable interpretation of the opinion "must recognize that, if the court intended to impose the significant limitation on the scope of the privilege advocated by Joint Defendants, it would have articulated that limitation in enunciating the standard for determining whether a communication not directly involving the President can be protected by the privilege, and not in a one-paragraph analysis of how the standard applies [to] the facts of the individual case." Id. at 2-3.

With respect to Joint Defendants' interpretation of theJudicial Watch case, Plaintiff asserts that "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 to other Executive Branch agencies such as the Department of Justice." Id. at 3, citingJudicial Watch, 259 F. Supp. 2d at 91. Plaintiff asserts that:

[c]arrying Joint Defendants['] argument to its logical conclusion demonstrates that the purpose of the presidential communications privilege would be severely undermined if their argument were accepted. Joint Defendants do not limit their "nondelegable powers" argument to communications in Executive Branch agencies outside the White House; thus, Joint Defendants contend that the privilege cannot protect confidential communications among the President's closest advisers made in the process of developing advice for the President, even on matters relating to the President's enumerated functions under Article II of the Constitution, unless those functions are nondelegable by the President. Joint Defendants contend that the President's advisers cannot communicate in confidence, without the direct involvement of the President in the communication, on matters relating to the President's constitutional duty to take care that the laws are faithfully executed, Reply at 8-9, or regarding his enumerated constitutional authority to "require the Opinion, in writing, of the principal Officer in each of the executive Departments," Reply at 9 (quoting U.S. Const. art. II, § 2), or on any matter Joint Defendants believe is delegable. Under Joint Defendants' construction, therefore, the protection afforded by the privilege would undermine the President's ability to rely on his advisers to develop frank and candid recommendations on many of the matters directly related to the duties of his office, as Joint Defendants believe that the President must be a participant in every such communication regarding a delegable power in order for the privilege to apply.

Surreply at 4.

Plaintiff also asserts that case law does not require that it state the constitutionally assigned function that would be interfered with by release of the document, nor that Plaintiff is required to demonstrate harm to the President's decisionmaking process for the privilege to apply.⁶ Id. at 5, citing Reply at 13, 17.

6 Plaintiff notes that the Gonzales and Reed Declarations do show such harm. Surreply at 5 n. 4.

b. Recommendation — Standard for Presidential Communications Privilege

First, the Special Master does not believe that Joint Defendants are precluded from challenging the scope of the presidential communications privilege in their Motion for failure to include this basis in their initial notice to Plaintiff. The Special Master believes it sufficient that Joint Defendants identified these documents to Plaintiff for privilege challenge.

Second, the Special Master does not believe that the scope of the presidential communications privilege proposed by Joint Defendants is sustainable. Rather, Joint Defendants' reading ofIn re Sealed Case to limit the scope of the presidential communications privilege to discussions involving presidential decisionmaking rooted in a quintessential and non-delegable Presidential power is simply too narrow. "This limitation was expressly rejected by the Circuit Court in its recent review ofJudicial Watch, Inc. v. Department of Justice, ⁷ where the Court of Appeals noted that:

7 This appellate opinion was issued after the briefing on the instant Motion was completed.

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). Rather, 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, quotingIn re Sealed Case, 121 F.3d at 752.

Implicit 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.

The Special Master recognizes the cautions of our Circuit Court 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, inter alia, on whether the deliberations ultimately called for Presidential decisionmaking, and not just the Vice President or other high-ranking officials.

c. Recommendation — Joint Defendants' Need

With respect to the parties' arguments regarding Joint Defendants' "need" for certain documents otherwise protected by the deliberative process or presidential communications privileges, the Special Master notes, as in prior Reports and Recommendations, that both privileges 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" the Special Master will "undertake 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.").

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 privilege is a high one.

A final preliminary comment regarding Joint Defendants' need is in order. 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).

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)), rev'd on other grounds, 691 F.2d 514 (D.C. Cir. 1982).

"[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 at 737); 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)).

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 ⁸

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

a. Documents Relating to the MSA and 1997 Proposed State Settlement

These documents relate to the 1997 Proposed State Settlement and the Master Settlement Agreement, which a number of the Defendants in this case entered into with the state Attorneys General to settle claims brought by a number of the states. With respect to the proposed settlement, Mr. Locke explains that "[t]he White House took the lead in forming and leading groups from various Executive Branch agencies and EOP components to review and evaluate the proposed settlement" in order "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.

Although the 1997 proposed settlement fell through, the MSA was signed. Mr. Locke explains that:

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. OMB's analysis of the MSA was not primarily conducted to determine the effect of the MSA itself on the budget (e.g., the reductions under existing law in tobacco excise taxes that might result from decreases in cigarette consumption resulting from the MSA). Rather, 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 notes that these analyses and deliberations were not intended to be made public, but were intended "(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 assert that their need for these documents outweighs any privilege interest held by Plaintiff. They contend that, to the extent that the Challenged Documents "include discussions about the MSA, why it would work, why certain provisions of the MSA are good, why some of them are bad, and why some of them are important," such discussions "are highly relevant to Joint Defendants' position that the relief sought by Plaintiff in this lawsuit is unnecessary, unwarranted and moot." Mot. App. B at 7.

They further contend that, "to the extent the discussions 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, such documents are relevant to Joint Defendants' affirmative defenses, such as `unclean hands,' ` in pari delicto,' and `equitable estoppel."Id. at 19.

Joint Defendants note that "Plaintiff laid claim to a portion of the proceeds paid under the MSA on the grounds that a portion of the payments represented reimbursement for Medicaid payments" and "attempted to link its waiver of reimbursement of part of the MSA with the states' use of the proceeds to reduce underage smoking, including enforcement of state age restrictions for the sale of tobacco products." Id. at 19-20. The states objected to this, and the federal government later relinquished this claim with President Clinton's signing of the Emergency Supplemental Appropriations Act in May, 1999.

Joint Defendants argue that Plaintiff had an opportunity to encourage the states to effectively enforce underage smoking laws by making the waiver of recoupment conditional on states' improvement in enforcing these laws, and that "[t]he Challenged Documents in this group may well 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. at 21. Additionally, Joint Defendants assert that "internal discussions leading up to President Clinton's decision to sign the Emergency Supplemental Appropriations Act 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. at 22.

1. PRA061-1250-1253 [CD 9]

"This document consists of five emails discussing states' use of tobacco payments under the MSA for health or related services and an agency proposal for a Federal rule governing how states may treat anticipated tobacco settlement revenues for the purpose of maintenance of effort requirements for health or related grant programs." Locke Decl. at 9. Mr. Locke describes the emails as follows:

(a) August 11, 2000 from Kathryn B. Stack,⁹ Program Examiner, Human Resources, OMB, to Barbara Chow, Associate Director, Education, Income Maintenance, and Labor Division, OMB, with copies to Larry Matlack, Chief, Labor Branch, Education, Income Maintenance, and Labor Division, OMB, and David Rowe, Program Examiner, Health/Personnel, OMB, providing background information on existing regulations and summarizing the proposed new rule, stating OMB's position on the proposed rule, and discussing whether to consider policy changes for other health-related programs; (b) August 14, 2000 from Ms. Chow to Jeanne Lambrew, Associate Director, Health, OMB, with copies to Jennifer E. McGee, Office of Policy Development, White House, and Molly O'Malley, Confidential Assistant, Health Care Services, OMB, forwarding (a), discussing the possible broad applicability of the proposal described in (a), and seeking information and input as to how to encourage states to spend more on health or related services; (c) August 14, 2000 from Ms. Stack to Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, and Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, with copies to Mr. Matlack and Mr. Rowe, discussing (b); (d) August 14, 2000 from Mr. Clendenin to Thomas Reilly, Chief, Health and Human Services Branch, Health/Personnel, OMB, Mr. Seidl, Jeffrey A. Farkas, Program Examiner, Health /Personnel, OMB, and Andrew J. Scott, Program Examiner, Health/Personnel, OMB, with copies to a large group of OMB personnel, forwarding (a)-(c) for review and a future discussion; and (e) August 14, 2000 from John F. Morrall, III, Chief, Human Resources and Housing, OMB, to Wendy A. Taylor, Policy Analyst, OIRA, OMB, forwarding (a)-(d).

Id. Plaintiff claims the deliberative process privilege.

9 Because of the large number of participants in the communications that are subject to this privilege challenge, the Special Master has attached a names glossary as Exhibit B with the titles and positions of the individuals involved with the communications, and, because most of the participants take part in discussions contained in more than one document, the Special Master will only include their titles and positions in this Report and Recommendation the first time they are mentioned. Appendix A contains a chart delineating the challenge numbers, the bates number, the privilege(s) claimed, the recommended ruling, and any pertinent notes.

9 Because of the large number of participants in the communications that are subject to this privilege challenge, the Special Master has attached a names glossary as Exhibit B with the titles and positions of the individuals involved with the communications, and, because most of the participants take part in discussions contained in more than one document, the Special Master will only include their titles and positions in this Report and Recommendation the first time they are mentioned. Appendix A contains a chart delineating the challenge numbers, the bates number, the privilege(s) claimed, the recommended ruling, and any pertinent notes.

This document qualifies for the deliberative process privilege as it contains the give-and-take of agency deliberations, and is predecisional to an agency decision. For example, Ms. Chow notes in her email that they " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " and asks whether Ms. Lambrew could " REDACTED REDACTED REDACT She also asks for Ms. Lambrew's opinion as to which REDACTED REDACTED REDACTED.

Joint Defendants contend that this "document seems to show that Plaintiff was well aware of the states' failure to use tobacco funds for health or related services and contemplated federal rules regarding such use," and as such relates to their affirmative equitable defenses. Mot. App. B at 22. As noted above, because the Court has dismissed these claims, the Special Master does not believe that the documents are sufficiently relevant to this matter to justify overcoming Plaintiff's privilege interest.

2. PRA061-1633-1637 [CD 12]

Pages 1633-1635 of this document contain an August 22, 1997 memorandum from Jim Esquea, Program Examiner, Health/Personnel, OMB, Anne E. Tumlinson, Program Examiner, Health/Personnel, OMB, and William G. White, Program Examiner, Health/Personnel, OMB, to Barry T. Clendenin, Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, Mark E. Miller, Chief, Health Financing, Health/Personnel, OMB, and Joshua Gotbaum, Executive Associate Director, OMB. The email "report[s] on a conference call among OMB, White House Domestic Policy Council (DPC), and HHS staff to discuss HHS spending options on health investments out of funds to be paid to the United States from the proposed June 1997 tobacco settlement. The memorandum includes a discussion of whether HHS should prioritize spending items and a summary of HHS's proposals for spending on health investments." Locke Decl. at 7. Plaintiff claims the deliberative process privilege for pages 1633-1635 of this memorandum.

Pages 1636-1637 are dated November 13, 1998 and contain "OMB's recommendations to the President as to what he should say in a speech on tobacco," and "tobacco proposals offered on the assumption that the MSA is agreed to, including projected payments to states under the MSA and Federal receipts resulting from tobacco legislation." Id. at 8. Plaintiff claims the deliberative process and presidential communications privilege for these pages.

The Special Master believes that pages 1633-1635 are protected by the deliberative process privilege. This memorandum contains a candid assessment of REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED. The document is candid and personal in nature, and REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master believes that these internal deliberations are sufficiently personal and candid to qualify the documents for the privilege.

The Special Master further believes and recommends that the Court find that Joint Defendants' need for pages 1633-1635 does not outweigh Plaintiff's privilege interest. Here, Joint Defendants tie their interest in government deliberations regarding how to spend settlement proceeds to their affirmative equitable defenses, which are no longer part of this case and therefore not sufficiently relevant to overcome Plaintiff's privilege interest.

With respect to Plaintiff's claim of presidential communications privilege, pages 1636-1637 are communications made to the President and/or a high-level Presidential advisor in the course of the advisor's duties in assisting the President in his decisionmaking. For example, the " REDACTED " is " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED" The Special Master therefore believes that the presidential communications privilege applies to pages 1636-1637, and there has not been a sufficient showing of need to overcome the protection afforded such communications.

3. PRA078-0086-0088 [CD 50]

Plaintiff claims the deliberative process privilege for a portion of this document, namely two October 6, 1998 emails on page 0086 relating to questions and answers on the subject of a potential settlement between the states and the tobacco industry. The first email is from Laura Emmett, Policy Assistant, DPC, "to a large group of EOP personnel" and "is a non-substantive email forwarding the questions and answers that have been released to defendants." Reed Decl. at 8-9. The second email is from Julia M. Payne, Special Assistant to the President and Assistant Press Secretary, White House Office ("WHO"), EOP, to Elizabeth Newman, Special Assistant to the Press Secretary, WHO, EOP, forwarding the first email and containing Ms. Payne's opinion about the Administration's position set forth in the questions and answers.Id. at 9; see also Gonzales Decl. Ex. A at 2.

The Special Master recommends that the Court overrule the deliberative process privilege claim. The only substantive portion of this document still subject to the privilege claim is the statement by Ms. Payne of " REDACTED REDACTED." While this statement reflects Ms. Payne's personal and unsolicited opinion, it is unclear how this opinion relates to agency deliberations, as opposed to Ms. Payne's judgment of something in the media, nor does it appear to relate to agency decisionmaking.

4. PRA078-1298-1298 [CD 141]

This document is a September 25, 1997 email from Ellen S. Seidman, Special Assistant to the President for Economic Policy, National Economic Council ("NEC"), Office of Policy Development ("OPD"), to Jeanne Lambrew, requesting that Ms. Lambrew review Ms. Seidman's draft write-up of a Bruce Reed tobacco strategy meeting that day. Reed Decl. at 9; Gonzales Decl. App. A at 2-3. Plaintiff claims the deliberative process privilege, and Messrs. Reed and Gonzales explain that "[t]he memorandum discusses a number of tobacco-related items, including planned Vice Presidential actions and strategy for various tobacco issues."Id.

The Special Master recommends that the Court sustain the privilege claim, as the document relates to the development of tobacco policy, and contains the Administration's strategy to create such policy. For example, the email states, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master further believes that Joint Defendants' need cannot overcome Plaintiff's interest in its privilege, as the document relates to the process by which agency policy is developed, which is at the heart of the deliberative process privilege,¹⁰ and because Joint Defendants have not shown a specific need for documents relating to the process by which Plaintiff formulated tobacco policy.

10 "The deliberative process privilege, we underscore, is centrally concerned with protecting the process by which policy is formulated." Petroleum Information, 976 F.2d at 1435 (emphasis in original).

5. PRA078-2009-2011 [CD 177]

Plaintiff claims the deliberative process privilege for this document, which consists of five emails transmitting and discussing a draft statement on tobacco to be included in a Council of Economic Advisors ("CEA") Report. Mr. Reed describes the emails as follows:

(a) April 26, 2000, from Jeffrey A. Forbes, Deputy Assistant to the President and Deputy Director of Scheduling, WHO, EOP, to J. Eric Gould, Associate Director for Domestic Policy, DPC, attaching a draft document discussing the Administration's view on state tobacco prevention and control programs; (b) April 26, 2000, from Mr. Gould to Eugenia Chough, Assistant Director for Domestic Policy, DPC, addressing where Mr. Gould believes the information in the attached document could be placed in Council of Economic Advisor Report; (c) April 26, 2000, from [Lowell J.] Taylor to Ms. Chough, with copies to Andrea Kane, Associate Director for Domestic Policy, DPC, and Mr. Gould, responding to potential inclusion of information from attached document in CEA Report; (d) April 27, 2000, from Ms. Chough to Mr. Forbes, with a copy to Andrea Kane, Associate Director for Domestic Policy, DPC, requesting additional sources and citations for information contained in attachment.

Reed Decl. at 8; see also Gonzales Decl. Ex. A at 3.

The Special Master believes that the document qualifies for the privilege, as both the emails and the draft statement reflect internal agency decisionmaking. The Special Master does believe that Joint Defendants' need for this document outweighs Plaintiff's interest as the draft statement discusses potential efforts to reduce youth smoking, which is highly relevant to the claims and defenses in this lawsuit. Moreover, the correspondence and emails are not so highly candid or personal that their disclosure is likely to intimidate government employees from expressing personal views and opinions in the future.

As it is not clear whether the CEA Report would be published for the general public, it is uncertain whether Joint Defendants would have access to similar information from other sources. In light of the relevance of the communications and other factors weighing in favor of disclosure, the Special Master recommends that the Court order Plaintiff to release the document to Joint Defendants.

6. PRA078-2591-2591 [CD 209]

Plaintiff claims the deliberative process privilege for this document, which "consists of an April 8, 1998 email from Paul Tuchmann, Special Assistant, Chief of Staff, OVP, to Sarah A. Bianchi, Office of the Chief Domestic Policy Advisor to the Vice President, OVP, providing the author's impressions and views on the status of the tobacco settlement discussions." Reed Decl. at 10; see also Gonzales Decl. Ex. A at 3.

The Special Master recommends that the Court overrule the deliberative process privilege claim. The brief email, containing the subject line " REDACTED " and the text of " REDACTED REDACTED REDACTED" appears to be an unsolicited statement of opinion by an agency employee unrelated to any government deliberations. While the privilege seeks to protect candid discussions among employees, such protection is only afforded to communications that relate to agency decisionmaking — "the key question . . . [is] whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussions within the agency and thereby undermine the agency's ability to perform its functions." Dudman Communications, 815 F.2d at 1568. Moreover, Plaintiff has not shown "what deliberative process is involved and the role played by the document in issue in the course of that process."Coastal States, 617 F.2d at 868.

7. PRA171-0126-0134 [CD 242]

Plaintiff claims the deliberative process and presidential communications privileges for this June 26, 1997 email from Kris M. Balderston, Deputy Assistant to the President and Deputy Cabinet Secretary, Cabinet Affairs, WHO, EOP, to the Cabinet Affairs group. The email forwards "a memorandum from Robert Rubin, Secretary, Treasury, to Erskine Bowles, Chief of Staff, White House — Treasury's Weekly Report for the week of June 30, 1997, including a brief report on the participation of Treasury officials in the White House process of reviewing the 1997 proposed tobacco settlement." Reed Decl. at 10; see also Gonzales Decl. Ex. A at 3.

The Special Master believes that this document qualifies for the presidential communications privilege as it is a communication from a member of the President's Cabinet to the President's Chief of Staff — an immediate adviser to the President acting in his duties of formulating advice to give to the President for the development of Administration policy — providing an update on a variety of matters, many of which do not involve tobacco issues and are therefore not relevant to this matter. The Special Master does not believe that Joint Defendants can show need for this document, particularly as the majority of it is not relevant, and the portion that is relevant provides an update on the status of actions taken,¹¹ and information on such actions is available to Joint Defendants from other sources.¹²

11 The Special Master notes that the presidential communications privilege "covers final and postdecisional materials as well as pre-deliberative ones." In re Sealed Case, 121 F.3d at 745.

12 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

8. PRA171-0253-0253 [CD 250]

"This document is a June 3, 1997 email from Elizabeth Drye, Chief of Staff, DPC, to April Mellody, Assistant Press Secretary, WHO, EOP, forwarding an email of the same date from Elena Kagan, Deputy Assistant to the President for Domestic Policy, DPC, to Ms. Drye, offering Ms. Kagan's guidance on the Administration's position on the damages and liability provisions in the 1997 proposed tobacco settlement agreement." Reed Decl. at 10; see also Gonzales Decl. Ex. A at 3. Plaintiff claims the deliberative process privilege.

The Special Master does not believe that the document qualifies for the deliberative process privilege. The substantive portion of the email relays the following response to a question: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACT The email therefore appears to provide information about established policy, and does not pertain to the creation of future agency policy. See In re Sealed Case, 121 F.3d at 737 ("The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made . . .").

9. PRA171-0522-0524 [CD 268]

This document is a September 15, 1997 email from Jeanne Lambrew to Christopher Jennings, Deputy Assistant to the President for Health Policy, DPC, and Ellen S. Seidman, "transmitting and requesting comment on draft press guidance for Gene Sperling, Director, NEC, OPD, for a Washington Post editorial board meeting the next day concerning the Administration's review of the 1997 proposed tobacco settlement." Reed Decl. at 10-11; see also 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 0522, which contains a non-substantive email and a hex dump, and for page 0523, which contains no substantive information. The Special Master does believe that page 0524 qualifies for the deliberative process privilege. Here, Ms. Lambrew specifically asks Mr. Jennings and Ms. Seidman for their comments to the draft press release. As a draft, the document reflects the personal views of the employees, and not the policy of the agency,¹³ and because the author solicits comments, page 0524 is predecisional and deliberative in nature.

13 See Judicial Watch, Inc. v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995).

The Special Master does not believe that Joint Defendants can show need for this document. Here, the document relates to responses to press inquiries regarding REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED . First, similar information is available to Joint Defendants from other sources, namely any final press releases on this issue from the Administration. Second, Joint Defendants have argued that information pertaining to these topics is relevant to their affirmative defenses that have since been dismissed from this case. Joint Defendants have offered no other arguments demonstrating the relevancy of this material.

10. PRA171-0537-0537 [CD 273]

This document is a July 16, 1997 email from Thomas I. Freedman, Special Assistant to the President and Senior Director for Policy Planning, DPC, to Elena Kagan, and Bruce N. Reed, with copies to Elizabeth Drye, Jerold R. Mande, an Office of Science and Technology Policy ("OSTP") employee detailed to the Office of the Vice President to work with the White House DPC, and Mary L. Smith, Associate Director for Policy Planning, DPC. Plaintiff claims the deliberative process privilege, and Mr. Reed explains that the document "provid[es] background information/analysis preparatory to a meeting with tobacco farmers concerning the 1997 proposed tobacco settlement." Reed Decl. at 10; see also Gonzales Decl. Ex. A at 4.

The Special Master does not believe that the document qualifies for the deliberative process privilege. Here, the document contains suggested talking points for a meeting with tobacco growers, including: " REDACTED REDACTED REDACTED REDACTED REDACTED." Plaintiff has not demonstrated how talking points for a meeting with tobacco growers relate to the formulation of agency policy or the agency decisionmaking process. Coastal States, 617 F.2d at 868 ("the agency has the burden of establishing what deliberative process is involved, and the role played by the document in issue in the course of that process.").

11. PRA171-0548-0549 [CD 276]

This document consists of two July 9, 1998 emails. The first is from Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, to Bruce N. Reed, with copies to Cathy Mays, Executive Assistant to the Director, DPC; Laura Emmett, Policy Assistant, DPC; and Cynthia Dailard, Associate Director for Domestic Policy, DPC, transmitting and requesting comments on draft press guidance dealing with the rumored MSA, including background information. Reed Decl. at 11; see also Gonzales Decl. at 4. The second is from Mr. Reed to Ms. Rice, offering edits to the proposed answer. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the deliberative process privilege. The communications request comments on the proposed tobacco settlement and the potential impact on youth smoking. They also contain Mr. Reed's comments on the proposed settlement. As such, they reflect the give-and-take of the consultative process.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's interest in the privilege. Although the communications relate to youth smoking, which is highly relevant to the claims and defenses in this matter, Joint Defendants do have access to any final press releases and have not shown an independent need for Mr. Reed's comments.

12. PRA171-0771-0771 [CD 279]

Plaintiff claims the deliberative process privilege for the "Background" portion of this July 10, 1998 document. This segment "provides information and analysis concerning the rumored settlement between the states' attorneys general and the tobacco companies as well as recommendations as to what the Administration's approach should be if the deal materializes." Reed Decl. at 11; see also Gonzales Decl. Ex. A at 4.

The Special Master believes that the "Background" portion of this document qualifies for the deliberative process privilege. In this portion, the author notes that "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The author recommends that "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The communications are therefore recommendatory in nature and are predecisional to the creation of agency policy.

The Special Master does not believe that Joint Defendants can show need for this document, as their need argument for documents relating to the financial impact of the MSA and payments to the federal government pertain to the affirmative equitable defenses that are no longer part of this case.

13. PRA171-0887-0889 [CD 286]

This document consists of two September 9, 1997 emails. The first is from Patrick G. Locke to Jerold R. Mande, "with copies to Joseph J. Minarik, Associate Director, Economic Policy, OMB, Hugh T. Connelly, Deputy Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB, and Susanne D. Lind, Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB, providing amended tobacco lookback assessment scenarios (attempts to measure the effect on teen smoking consumption from price increases and other provisions in the 1997 proposed tobacco settlement, including discussing the various assumptions used)." Reed Decl. at 12; see also Gonzales Decl. Ex. A at 4. The second is from Mr. Mande to Elena Kagan and Bruce N. Reed forwarding the first. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0889, which contains only non-substantive information, and sustain the claim for pages 0887-0888, which contain different scenarios provided in response to a request for youth lookback penalties. These pages are deliberative in nature as the scenarios make certain assumptions and contain certain limitations, and they were provided during the course of the decisionmaking process.

The Special Master does not believe that this document is sufficiently relevant to the claims and defenses to justify overcoming the deliberative process privilege. Here, the documents relate to tax revenues, which Joint Defendants have asserted are relevant to their affirmative equitable defenses that are no longer part of this case. While youth smoking is mentioned, it is only addressed in the context of the impact youth smoking would have on tax revenues. The Special Master therefore recommends that the Court sustain the privilege claim notwithstanding Joint Defendants' assertion of need.

14. PRA172-2345-2345 [CD 333]

This document is a June 3, 1997 email from April Mellody to Joseph Lockhart, Assistant to the President and White House Press Secretary, WHO, EOP, "transmitting four questions concerning the Administration's positions on tobacco/smoking and offering certain background information and guidance to assist in preparing suggested answers to these questions." Reed Decl. at 12; see also Gonzales Decl. Ex. A at 4. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the email contains questions regarding possible agency policy, along with background information to assist in responding to the questions. It is deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants can show need for this document. The Administration's final position on the issues discussed in the email, including REDACTED REDACTED REDACTED, are all available from other sources. The Special Master also does not believe that Joint Defendants have shown how documents asking for responses to press inquiries are sufficiently relevant to the remaining claims and defenses in this matter to justify overcoming Plaintiff's privilege interest.

15. PRA172-2348-2348 [CD 334]

This document consists of two June 3, 1997 emails from Elizabeth Drye. The first is to Bruce N. Reed and Elena Kagan "transmitting four tobacco/smoking questions on which Michael McCurry, Deputy Press Secretary, WHO, EOP, need[ed] answers and providing preliminary suggestions/recommendations as to how those questions should be answered." Reed Decl. at 11-12; see also Gonzales Decl. Ex. A at 4. The second is to Cathy Mays and Laura Emmett "asking them to make certain that Mr. Reed and Ms. Kagan address the questions" in the first email. Id. Plaintiff claims the deliberative process privilege.

These emails are similar in nature to the email discussed in Challenged Document 333. For the reasons set forth supra with respect to Challenged Document 333, the Special Master recommends that the Court sustain Plaintiff's privilege claim for Challenged Document 334 notwithstanding Joint Defendants' claim of need.

16. PRA201-0201-0205 [CD 339]

This document consists of three emails dated December 10, 1998. The first email (a) is from Jonathan D. Gruber, a consultant to the Administration, to Cynthia A. Rice "transmitting a tobacco spreadsheet and writeup concerning his calculations of how large a profit tobacco companies will be making under the MSA (those attachments are not included with this document)." Locke Decl. at 8. The second email (b) is from Ms. Rice to Joshua Gotbaum, Len Berman, Treasury, and Mark McClellan, Treasury, with a copy to Victoria A. Wachino, a Senior Adviser in the Office of the Director at OMB, "forwarding the attachments mentioned in (a) and relating a conversation Bruce N. Reed, had with Jacob Lew, Director, OMB, and Lawrence Summers, Secretary, Treasury, concerning this issue and its relationship to potential policies for the Administration's 2000 Budget." Id. The third email (c) is from Ms. Wachino to Patrick G. Locke, Richard J. Turman, Joseph J. Minarik, Barry T. Clendenin, Richard P. Emery, Jr., Assistant Director, Budget Review, OMB, Daniel N. Mendelson, Associate Director, Health/Personnel, OMB, and Mr. Gotbaum, asking the recipients to review and comment on the Gruber documents transmitted with (a). Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that only the email from Ms. Rice, contained on page 0204, is protected by the privilege. The remainder of the document contains either nonsubstantive transmittal emails, unreadable hex dumps, or only document identification numbers. Ms. Rice's email notes, however, that " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The email is therefore both deliberative and predecisional.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege. Joint Defendants have argued that their need for communications pertaining to the impact the settlement may have on budget issues is grounded in their affirmative equitable defenses, which have been dismissed from this case. Therefore, the Special Master does not believe that these communications are sufficiently relevant to the claims and defenses remaining in this case to justify overcoming Plaintiff's privilege interest.

17. PRA201-0283-0283 [CD 341]

This document contains two September 9, 1997 emails between Mark E. Miller, and William G. White. The first is from Mr. White to Mr. Miller and relates a comment from Barry T. Clendenin regarding "the similarities between the White House 1997 review of the 1997 proposed tobacco settlement and the Administration's 1993 Health Security Act proposal." Locke Decl. at 9. The second contains Mr. Miller's response to Mr. Clendenin's observation.Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Essentially, the email from Mr. White states, " REDACTED REDACTED REDACTED REDACTED REDACTED " Mr. Miller responds, " REDACTED ." The Special Master is not persuaded that these communications actually relate to governmental deliberations. Moreover, the communications claimed privileged do not actually reveal any additional information than that already contained in Mr. Locke's publicly-released Declaration, and therefore no benefit could be gained from maintaining the privileged status of this document.

18. PRA202-0085-0088 [CD 349]

This document contains two June 25, 1997 emails. The first is from Jim Esquea to Nancy-Ann Min, Associate Director for Health and Personnel, OMB; Barry T. Clendenin; Richard J. Turman; Mark E. Miller; and Jennifer Ferguson, Confidential Assistant, Health/Personnel, OMB, "reporting on the first meeting of the Regulatory Issues committee, one of the working groups set up by the White House to examine the 1997 proposed tobacco settlement; the memorandum describes the Administration's strategy for examining the proposed settlement." Locke Decl. at 9. In the second email Mr. Clendenin forwards the first to Thomas Reilly.Id. Plaintiff claims the deliberative process and attorney-client privileges for these emails.

Pages 0085-0086 contain only document identification numbers and are therefore not protected by either privilege claim.¹⁴ The Special Master recommends that the Court sustain the claim of attorney-client privilege for pages 0087-0088, as the email reveals a request for legal advice made to representatives from the Department of Justice: "REDACTED REDACTED REDACTED REDACTED REDACTED ." Thus, the document reveals confidential communications made to Justice Department attorneys during the meeting.

14 Where a document contains pages that only contain a document identification number or are blank, the Special Master has recommended that the Court overrule the privilege claim, but has not recommended that the pages be released to Joint Defendants, as the documents are devoid of any substantive information and would be of no use to them. The Special Master notes that only pages that are blank or have just document identification numbers are not recommended to be released; pages with any other information to which no privilege applies have been recommended released even if non-substantive.

The Special Master further recommends that the Court sustain the claim of deliberative process privilege for pages 0087-0088. Here, the email sets forth discussions regarding " REDACTED REDACTED " as well as the process by which the Administration was seeking to create agency policy, which is a primary focus of the deliberative process privilege.¹⁵

15 As the Special Master recommends that the Court sustain the attorney-client privilege, there is no need to analyze whether Joint Defendants' need for this document outweighs Plaintiff's privilege interest.

19. PRA202-0089-0091 [CD 350]

This document is a June 26, 1997 email from Joseph J. Minarik to Randolph M. Lyon, Economist, Economic Policy, OMB; Robert B. Anderson, Economist, Economic Policy, OMB; Mark A. Wasserman, International Economist, Economic Policy, OMB; Laurence R. Jacobson, Economist (International), Economic Policy, OMB; and Justine F. Rodriguez, Deputy Associate Director, Economic Policy, OMB. In the email Mr. Minarik "seek[s] information on a non-responsive matter (Australia) and providing a brief summary of the role that the Economic Policy group at OMB will play in examining the 1997 proposed tobacco settlement, including cautioning the recipients as to how they should do their work in this area." Locke Decl. at 9. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0089-0090, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0091, which contains internal agency deliberations regarding the working groups established to analyze the tobacco settlement, and provides thoughts on the issue and solicits comments: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. The document is very candid and personal in nature, and relates to the process by which policy is created. The Special Master believes that disclosure of this document could serve to chill future agency deliberations.

20. PRA202-0102-0105 [CD 352]

This document is a duplicate of the first-in-time email described in Challenged Document #349, with the addition of an email from Richard J. Turman forwarding the email by Mr. Esquea to a large group of OMB personnel. Locke Decl. at 10. Plaintiff claims the deliberative process and attorney-client privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0102-0103, as they contain only document identification numbers and no substantive information. As pages 0104-0105 are a duplicate of Challenged Document #349, the Special Master recommends that the Court sustain the claims of attorney-client privilege and deliberative process privilege.

21. PRA202-0106-0109 [CD 353]

This document is a duplicate of the first-in-time email described in Challenged Document #349, with the addition of an email from Barry T. Clendenin forwarding the email by Mr. Esquea to Janet R. Forsgren, Chief, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB, and Robert Pellicci, Legislative Analyst, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB. Locke Decl. at 10. Plaintiff claims the deliberative process and attorney-client privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0106-0107, as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the claims of attorney-client privilege and deliberative process privilege for pages 0108-0109, as they are a duplicate of Challenged Document #349.

22. PRA202-0116-0119 [CD 354]

This document consists of two June 23, 1997 emails from Barry White, Deputy Associate Director, Human Resources, OMB, to Kenneth S. Apfel, Associate Director, Human Resources, OMB, with copies to Jill Pizzuto, Assistant to Joshua Gotbaum, OMB; Larry Matlack, Keith Fontenot, Chief, Income Maintenance, Human Resources, OMB; and Kathryn B. Stack "reporting on a White House meeting to discuss the spending aspects of the 1997 proposed tobacco settlement" and "the subjects and issues (principally proposed uses of funds in two particular areas) to be considered by this group pursuant to the President's direction." Locke Decl. at 10. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0116-0117, as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0118-0119 as they memorialize the discussions that took place in a meeting relating to the tobacco settlement and the Administration's policy vis-à-vis the settlement.

The Special Master does not believe that Joint Defendants' need outweighs the government's privilege interest. Here, the discussions address proposals for spending settlement proceeds. Joint Defendants have argued that such communications are relevant to their affirmative equitable defenses; however, these defenses are no longer a part of this case and the relevance of such communications is not sufficiently strong to justify overcoming Plaintiff's privilege. This is especially true here, where the discussions are candid and closely relate to the internal workings of the Administration and the development of its policy, as reflected by Mr. White's statement that "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

23. PRA202-0232-0234 [CD 355]

This document is a July 9, 1997 email from Joseph J. Minarik to Barry T. Clendenin; T.J. Glauthier, Associate Director, Natural Resources, Energy, and Science, OMB; Kenneth S. Apfel; Alecia Ward, Confidential Assistant, Natural Resources, OMB; and Barry White, "relaying a request from one of the working groups reviewing the 1997 proposed tobacco settlement for suggestions of what program costs likely would be affected by a significant reduction in smoking." Locke Decl. at 11. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0232-0233, as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule the privilege claim for page 0234 as the email contains no additional information beyond what is already contained in Mr. Locke's Declaration.

24. PRA202-0249-0252 [CD 356]

This document consists of two July 10, 1997 emails. The first is from Robert Rideout, Chief, Personnel, Postal, EXOP Branch, VA/Personnel, OMB, to Joseph J. Minarik, "with copies to a large group of OMB personnel, suggesting two programs whose costs would be affected by the 1997 proposed tobacco settlement, seeking guidance as to whether there should be an effort to coordinate agency projections (actuarial assumptions) of likely effects of the settlement and asking, if there is to be such an effort, who should be involved in that effort." Locke Decl. at 11. In the second email, Barry T. Clendenin forwards the first to Barbara E. Washington, Program Examiner, Health, OMB. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0249-0250, which contain only document identification numbers and no substantive information, and for page 0252, which contains only a cc list. Page 0251 contains Mr. Rideout's response to Mr. Minarik's request for information regarding programs whose costs could be impacted by a tobacco settlement, as well as suggestions for future action. This page should be protected by the deliberative process privilege as the email contains Mr. Rideout's opinions and recommendations provided in the process of formulating agency policy.

The Special Master further believes that Joint Defendants cannot establish need for this document. Joint Defendants have claimed that documents relating to the impact the settlement 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 they are sufficiently relevant to justify overcoming Plaintiff's privilege interest.

25. PRA202-0253-0255 [CD 357]

This document consists of three July 10, 1997 emails. The first is from Barry White to Robert Rideout, telling him to contact Keith Fontenot "for actuarial input from the Social Security Administration." Locke Decl. at 11. The second is from Mr. Rideout to Mr. Fontenot, with a copy to Carol S. Johnson, Program Examiner, VA/Personnel, Health/Personnel, OMB, which follows up on the first and "pos[es] many of the same questions he posed in his email described in Challenged Document #356." Id. The third is from Mr. Fontenot to Mr. Rideout, with copies to Jack A. Smalligan, Program Examiner, Income Maintenance Branch, Human Resources, OMB; Christopher M. Sauer, Program Examiner, Income Maintenance Branch, Human Resources, OMB; Desiree G. Filippone, Program Examiner, Income Maintenance Branch, Human Resources, OMB; and Ms. Johnson, responding to the second and "providing a status report on where SSA stands in its efforts and what OMB should do with the information once it is obtained from SSA."Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0253, which contains only a document identification number and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0254-0255, as these pages reflect the give-and-take of the agency consultative process, as well as the process by which the agency makes decisions.

The Special Master does not believe that Joint Defendants' claimed need for these emails is sufficient to overcome Plaintiff's privilege interest, as the communications reveal agency decisionmaking processes, which are the essence of what the privilege seeks to protect. Moreover, the process by which agencies make decisions extends beyond information that is relevant in this case, but to agency decisionmaking regarding other policy; therefore, the potential chill that could be caused by disclosure is especially prevalent.

26. PRA202-0259-0262 [CD 358]

This document is a July 11, 1997 email from Molly Finch, Student Assistant, Health Division, OMB, to Anne E. Tumlinson "providing edits to an attached statement/paper assessing the adequacy of the funds to be provided by the 1997 proposed tobacco settlement." Locke Decl. at 12. Mr. Locke explains that the "statement/paper analyzes the adequacy of the funds to be provided from the standpoint of comparing them with the amount of damages the tobacco companies might have paid to states and individuals if they lost lawsuits filed by those parties against the companies." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0259-0260 as they contain only document identification numbers and no substantive information. The Special Master further recommends that Court sustain the privilege claim for pages 0261-0262, as these pages contain an analysis of REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED . The email therefore is deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have established a need for communications comparing the proposed settlement to possible damages that could be assessed against the industry as a result of class action lawsuits as they have not shown the relevancy of such information to the claims and defenses in this matter.

27. PRA202-0270-0272 [CD 360]

This document contains two emails. The first is dated July 14, 1997 and is from Anne E. Tumlinson to Arthur W. Stigile, Financial Economist, Budget Analysis and Systems, Budget Review, OMB, with copies to Victoria A. Wachino and Katherine Kirchgraber, Program Examiner, Health/Personnel, OMB, "asking if the OMB Health Division personnel examining the 1997 proposed tobacco settlement could consult with Mr. Stigile concerning possible ways to direct uses of funds to be received from the settlement." Locke Decl. at 12. The second is dated July 15, 1997 and is from Mr. Stigile to Harry E. Moran, Budget Methods Specialist, Budget Review, OMB, and Jason R. Orlando, Policy Analyst, Budget Analysis and Systems, Budget Review, OMB, "telling them that they should be involved in these consultations as well." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0270-0271 as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0272, which contains proposals for use of tobacco settlement funds: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants' need for these communications outweighs Plaintiff's privilege interest, as the deliberations are not sufficiently relevant to the remaining claims and defenses in this matter to justify overcoming Plaintiff's privilege interest.

28. PRA202-0273-0276 [CD 361]

This document consists of two emails dated July 21, 1997. The first is from William G. White to Joshua Gotbaum "with copies to a large group of OMB personnel, reporting on two meetings of the working group on legal issues reviewing the 1997 proposed tobacco settlement that discussed possible legal problems with and legal challenges to certain provisions in the proposed settlement." Locke Decl. at 12-13. Mr. Locke explains that, at the first meeting, lawyers from the Department of Justice "provided their assessment of the legal status of the FDA tobacco regulation challenges and they and Elena Kagan . . . discussed how the Administration should draft legislation to accompany the proposed settlement in such a way as to withstand legal challenge. At the second meeting, lawyers from Treasury and the FDA reviewed the implications of certain licensing issues relating to the proposed settlement. There was a discussion also of which agency best could handle federal licensing activities." Id. at 13. In the second email, Richard J. Turman forwards the first to Louise D. Young with instructions as to where to file it. Id. Plaintiff claims work product protection, the attorney-client privilege, and the deliberative process privilege.

The Special Master recommends that the claims of privilege/protection be overruled for pages 0273-0274 as these pages contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule the claim of work product protection for pages 0275-0276 as the email does not appear to have been prepared for reasonably foreseeable litigation.

The Special Master does believe that the attorney-client privilege applies to pages 0275-0276, as the email reflects confidential legal advice sought by government clients and received from government lawyers: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Additionally, the deliberative process privilege applies to these communications as the email reflects the opinions of the meeting participants in developing tobacco policy.¹⁶

16 As the Special Master has recommended that the attorney-client privilege claim be sustained, there is no need to consider whether Joint Defendants' need outweighs Plaintiff's deliberative process privilege claim.

29. PRA202-0291-0294 [CD 362]

This document contains two July 1, 1997 emails. The first is from Jim Esquea to Nancy-Ann Min, Barry T. Clendenin, Richard J. Turman, and Mark E. Miller, Chief, Health Financing, Health/Personnel, OMB, with copies to William G. White and Wendy A. Taylor. Mr. Locke explains that the email

report[s] on two meetings of the Regulatory Issues/Tobacco Settlement Review Group. The first meeting included a discussion of what legal authority the FDA would have under the June 1997 proposed settlement as compared to its authority as a result of the North Carolina decision, as well as how to enforce the settlement's advertising restrictions. The participants also discussed who should, and how to, enforce the licensing provisions in the proposed settlement. The second meeting discussed concerns relating to the regulation of product content, labeling, and safety, including one agency's concerns about how to deal with a particular type of cigarette product. Locke Decl. at 13. In the second email, Mr. Clendenin forwards the first to Joshua Gotbaum. Plaintiff claims the attorney-client and deliberative process privileges, as well as work product protection, for this document.

The Special Master recommends that the Court overrule the claims of privilege/protection for pages 0291-0292 as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule (1) the claim of work product protection for pages 0293-0294, as the email does not appear to have been prepared for or in anticipation of reasonably foreseeable litigation, and (2) the attorney-client privilege claim, as the email does not contain or reveal confidential client communications made in connection with a request for legal advice.

The Special Master does recommend that the Court sustain the deliberative process privilege claim for pages 0293-0294 as they reflect the deliberations of agency employees in developing policy regarding tobacco regulation, and the exchange of ideas and recommendations. For example, Mr. Esquea explains that REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."

Joint Defendants contend that this document contains "discussions of Plaintiff's authority to enforce regulations while Joint Defendants are subject to the MSA" and that such discussions "will aid Joint Defendants' defense that the existence of a regulatory framework and the MSA may make the relief sought by Plaintiff moot." Mot. App. B at 18-19. Here, however, the discussions appear to address the 1997 proposed resolution, and not the MSA. The Special Master therefore does not believe that Joint Defendants have demonstrated sufficient need for communications addressing the proposed settlement to overcome Plaintiff's privilege interest.

30. PRA202-0295-0298 [CD 363]

This document is a duplicate of the first-in-time email described in Challenge Document #362, with a forwarding email from Mark E. Miller to Anne E. Tumlinson and Barbara E. Washington. Locke Decl. at 13. Plaintiff claims the attorney-client and deliberative process privileges, as well as work product protection, for this document.

Pages 0295-0296 do not qualify for the privileges/protection claimed because they contain only document identification numbers and no substantive information. For the reasons set forth with respect to Challenged Document #362, the Special Master recommends that the Court overrule the claims of work product and attorney-client privilege, and sustain the claim of deliberative process privilege for pages 0297-0298 notwithstanding Joint Defendants' claimed need.

31. PRA202-0332-0336 [CD 364]

This document is comprised of four emails "discussing Social Security actuarial estimates of the likely effects of the 1997 proposed tobacco settlement on the Social Security program." Locke Decl. at 14. The first is dated July 7, 1997 and is from Keith Fontenot "to a large group of OMB employees, describing Treasury Department efforts to calculate the likely effects, including listing some of the assumptions made and numbers used."Id. The second is dated July 8, 1997 and is from Desiree G. Filippone to Mr. Fontenot and the other recipients of the first and provides "further information about the numbers and assumptions in the efforts to calculate likely effects." Id. The third email is dated July 10, 1997 and is "from Ms. Filippone to the same group, with copies to another large group of OMB personnel, providing yet more, and revised, information." Id. The final email is also dated July 10, 1997 and is from Robert Rideout to Michael L. Goad, Program Examiner, Personnel, Postal, EXOP Branch, VA/Personnel, OMB; Bruce D. Long, Deputy Associate Director, VA, Health/Personnel, OMB; Carol S. Johnson and Karen S. Dooley, Administrative Support Assistant, VA /Personnel, OMB; forwarding the prior three emails and "commenting briefly on the documents, and giving his brief assessment of what has been determined as of that date." Id. Plaintiff claims the deliberative process privilege for this document.

The Special Master recommends that the Court overrule the privilege claim for pages 0332-0333 as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0334-0336 as they contain agency deliberations regarding estimates of the effect of tobacco on government entitlement programs. The Special Master does not believe that Joint Defendants can show need for this document as their need argument for communications relating to the effect the settlements could have on the federal budget and programs relate to their affirmative equitable defenses, which are no longer part of this case. These communications therefore are no longer sufficiently relevant to the claims and defenses to justify overcoming Plaintiff's privilege interest.

32. PRA202-0337-0340 [CD 365]

"This document consists of three July 15, 1997 emails concerning a White House meeting to discuss NIH's spending funds from the 1997 proposed tobacco settlement on tobacco-related research." Locke Decl. at 14. The first is from Victoria A. Wachino to Joshua Gotbaum, with copies to Barry T. Clendenin; Richard J. Turman; Chin Chin Ip, Program Examiner, Health/Personnel, OMB; Jim Esquea and William G. White, "reporting on the meeting, including discussions as to what funds would be available, for what purposes the funds made available should be spent, and how to structure programs to spend the funds." Id. In the second email, Mr. Clendenin forwards the first to Thomas Reilly, Mark E. Miller and Anne E. Tumlinson. In the third email, Mr. Reilly forwards the first two "to several OMB personnel." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0337-0338 which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0339-0340, which contain internal agency discussions regarding allocation of settlement funds, and are deliberative and predecisional in nature (" REDACTED REDACTED REDACTED REDACTED REDACTED). Joint Defendants' need argument for communications regarding federal spending of settlement funds is grounded in their affirmative equitable defenses, which are no longer part of the case. Therefore, Joint Defendants have not shown sufficient justification for overcoming Plaintiff's privilege claim.

33. PRA202-0357-0361 [CD 366]

This document is a duplicate of the first-two-in-time emails described in Challenged Document #364, with the addition of a July 9, 1997 email from Mark E. Miller to a large group of OMB personnel forwarding those two emails. Locke Decl. at 15. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0357-0358, as these pages contain only document identification numbers and no substantive information, and for page 0361, which contains only a cc list. The Special Master further recommends that, consistent with the recommendation for Challenged Document #364, the Court sustain the deliberative process privilege claim for pages 0359-0360 and reject Joint Defendants' claim of need.

34. PRA202-0394-0397 [CD 367]

This document is a duplicate of the first-in-time email described in Challenged Document #364, with the addition of a July 9, 1997 email from Barry T. Clendenin to Robert Rideout forwarding the earlier email. Locke Decl. at 15. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0394-0395, which contain only document identification numbers and no substantive information, and for page 0397, which contains only a cc list. Consistent with the recommendation for Challenged Document #364, the Special Master further recommends that the Court sustain the privilege claim for page 0396 and reject Joint Defendants' claim of need.

35. PRA202-0457-0460 [CD 369]

"This document is a July 16, 1997 email from Jeffrey Harris, a consultant for the United States at the time, to Cristian J. Santesteban, Staff Economist, Council of Economic Advisers, EOP, with Dr. Harris' analysis of the likely effect of the proposed 1997 tobacco settlement agreement on cigarette prices." Reed Decl. at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0457-0458, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0459-0460, as they contain the deliberations of agency employees and consultants¹⁷ analyzing the proposed settlement: " REDACTED REDACTED REDACTED ."

17 Opinions and recommendations of consultants that are part of the agency's deliberations are protected by the privilege. Ryan v. Department of Justice, 617 F.2d 781, 789-90 (D.C. Cir. 1980).

The Special Master does not believe that Joint Defendants can establish need for these deliberations. Discussions speculating over the REDACTED REDACTED REDACTED are available to Joint Defendants from other sources, as they relate to Joint Defendants' own practices. Moreover, the Special Master does not believe that Joint Defendants have demonstrated that these discussions are sufficiently relevant to the claims and defenses to justify overcoming Plaintiff's privilege.

36. PRA202-0700-0721 [CD 370]

Plaintiff claims the deliberative process privilege only over pages 0702-0705 and 0718-0720. These pages contain "an email string from August 18-24, 1997, discussing the Administration's review of the proposed 1997 tobacco settlement, possible modifications thereto, and related tobacco matters." Locke Decl. at 15. Mr. Locke explains that there are four substantive emails in the string. The first is dated August 18, 1997, and is from Joseph J. Minarik to Hugh T. Connelly, "with copies to a large group of OMB personnel, requesting analysis of five ways to modify and implement the proposed settlement." Id. The second is dated August 15, 1997, and is from Mark E. Miller to Joshua Gotbaum, Mr. Minarik, and Barry T. Clendenin, "with copies to a large group of OMB personnel, concerning discussions with [Dr. Gruber at] Treasury about what tasks each agency should take on with respect to determining how to increase Federal tobacco revenues in connection with the proposed settlement and commenting on a meeting between Treasury and RJ Reynolds at which the financial effect of the proposed settlement on RJ Reynolds was discussed."Id. The third is dated August 15, 1997, and is from Mr. Minarik to Mr. Miller, "with copies to a large group of OMB personnel, responding to the second email and providing his interpretation of discussion at the meeting." Id. The final email is dated August 17, 1997, from Mr. Gotbaum to Mr. Minarik, with a copy to Richard J. Turman, responding to the third email "with his own views as to RJR's financial condition and asking for financial information on the tobacco companies." Id. at 16.

The Special Master believes that pages 0702-0705 and 0718-0720 are protected by the deliberative process privilege. The emails contain candid discussions on the issues of REDACTED REDACTED REDACTED REDACTED. The emails are both deliberative and predecisional.

The Special Master does not believe that Joint Defendants can show need for these communications. With respect to RJR's financial condition, Joint Defendants have access to this information from other sources, and the Special Master does not believe that Joint Defendants have demonstrated the relevance of the government's internal deliberations on this issue. With respect to Mr. Minarik's proposals, the Special Master does not believe that Joint Defendants have demonstrated that the proposals, which include REDACTED REDACTED , are sufficiently relevant to the claims and defenses here to justify overcoming Plaintiff's privilege interest.

37. PRA202-0733-0736 [CD 371]

This document is an August 8, 1997 email from William G. White to Joshua Gotbaum "and a large group of OMB personnel concerning proposals to use funds from the proposed 1997 tobacco settlement for smoking cessation programs and estimating how many additional smokers would quit if cessation programs were increased. The email includes Mr. White's alternative recommendation as to how to encourage smokers to quit." Locke Decl. at 16. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0733-0734 as these pages contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0735-0736, as these pages assess the proposed settlement and propose a course of action: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The communications are therefore both deliberative and predecisional.

The Special Master believes that Joint Defendants have a need for documents that relate to the government's analysis of components of the proposed settlement discussing ideas for encouraging smoking cessation. Such communications provide evidence, not available to Joint Defendants from other sources, regarding efforts to stop smoking, which are relevant to the claims of relief Plaintiff seeks in this case. On balance, the Special Master believes that Joint Defendants' need for these deliberations outweighs Plaintiff's interest in confidentiality for discussions among agency employees to justify overcoming the government's interest in its privilege for pages 0735-0736.

38. PRA211-0404-0415 [CD 393]

"This document is an email string from August 11-22, 2000 among a large group of OMB personnel discussing a proposal to create incentives for states to use more of their tobacco settlement payments under the MSA for health and related services." Locke Decl. at 16. This document is a partial duplicate of Challenged Document #9. The additional substantive emails in the string are: (a) an August 14, 2000 email from Thomas Reilly to Jeanne Lambrew "with copies to a large group of OMB personnel, providing [Mr. Reilly's] opinion of the proposal and asking for further discussions;" (b) an August 16, 2000 email from Frank J. Seidl, III to Ms. Lambrew, "providing further analysis and comment on the proposal;" (c) an August 22, 2000 email from Ms. Lambrew to Barbara Chow "with copies to a large group of OMB personnel, seeking further discussions concerning the proposal and relating certain major concerns that the OMB Health Division had;" and (d) an email from Mr. Seidl to Andrew J. Scott and Jeffrey A. Farkas forwarding the previous emails. Id. Plaintiff claims the deliberative process privilege for these emails.

The Special Master recommends that the Court overrule the privilege claim for pages 0404-0405, as these pages contain only document identification numbers and no substantive information, and for page 0415, which contains only a cc list. The Special Master believes that the remainder of the document, pages 0406-0414, is classic deliberative process, containing opinions, suggestions, criticisms and recommendations for agency policy. Because the document contains candid and personal assessments, such as " REDACTED REDACTED ," the Special Master believes that disclosure of the document would serve to chill future frank and candid internal agency discussions.

Joint Defendants' argument for need is that documents such as this "show that Plaintiff was well aware of the states' failure to use tobacco funds for health or related services," and that such discussions are relevant to the affirmative equitable defenses. Mot. App. B at 22. As these defenses are no longer a part of this case, and as the danger of future chill is significant, the Special Master does not believe that Joint Defendants have established need.

39. PRA213-0933-0938 [CD 398]

Mr. Locke describes this document as "a draft OMB paper prepared in April 1998 entitled, `Points Regarding CBO Analysis of the June [1997 proposed] Tobacco Settlement.' The paper, which is an explanation and critique of the Congressional Budget Office (CBO) analysis of the proposed settlement, was prepared for use by White House staff in responding to concerns of the National Governors Association about the likely revenues from the proposed settlement and the McCain Bill." Locke Decl. at 17. Plaintiff claims the deliberative process privilege for this document.

The Special Master recommends that the Court overrule the privilege claim for pages 0933-0935, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0936-0938, as the paper was prepared to assist White House staff in developing Administration policy. The Special Master does not believe that Joint Defendants have established sufficient need for draft communications prepared to assist in determining a public response to a publicly available analysis. Joint Defendants have access to the actual CBO paper, which is analyzed in this OMB paper, and to the Administration's final position on the proposed settlement, and have not shown that these communications are sufficiently relevant to justify overcoming Plaintiff's privilege interest.

40. PRA216-0539-0539 [CD 423]

Mr. Locke explains that "[t]his document is part of a large group of emails assembled by Victoria A. Wachino . . . on October 11, 2000 in response to Joint Defendants' comprehensive document production requests." Locke Decl. at 17. The document contains two emails pertaining to an "analysis of the tobacco settlement by Jonathan D. Gruber, Deputy Assistant Secretary, Treasury."Id. The first is dated December 14, 1998 and is from Ms. Wachino to Joshua Gotbaum, with copies to Patrick G. Locke; Daniel N. Mendelson; Barry T. Clendenin; and Richard J. Turman, forwarding for the recipients' consideration a December 11, 1998 email from Joseph J. Minarik, "to Ms. Wachino that sets forth Mr. Minarik's opinions of the Gruber analysis, its strengths and weaknesses, and its policy implications (Mr. Minarik's email, which was not identified by the defendants, appears at PRA216 0540) and characterizing Mr. Minarik's opinions." Id. The second is dated December 14, 1998, and is from Ms. Wachino to Mr. Minarik "responding to his December 11, 1998 email and indicating she was forwarding it to others within OMB." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule Plaintiff's privilege claim, as the emails merely forward other analyses (not included within this document), and are not deliberative in nature.

b. Documents Pertaining to Proposed Tobacco-Related Legislation

The documents in this category relate to proposed comprehensive tobacco legislation, including the legislation proposed by Senator McCain. Mr. Locke explains that the legislation, which, inter alia, contained provisions for settlement, "provided that some or all of the funds to be paid by the tobacco companies would be paid to the United States" and that "[t]here were a number of complementary and competing legislative proposals, mostly in the Senate but also in the House of Representatives, proposed during the time that the McCain bill was being considered by the Senate." Locke Decl. at 18.

Mr. Locke further explains that the White House and OMB undertook a review of the proposed settlements "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. He further states that the purpose of the review 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 assert a number of arguments in support of their need for the Challenged Documents in this category. First, they argue that, "[t]o the extent any discussions contained in these documents reflects on the legality of provisions in the proposed legislation . . . that are substantially similar to the relief requested by Plaintiff in this lawsuit, such discussions are relevant to the claims and defenses at issue here." Mot. App. B at 14.

Second, "[t]o the extent the discussions contained within the Challenged Documents reflect on the adequacy, merit and effectiveness of the requirements contained within the proposed legislation or existing laws, such discussions are directly at issue in this case, and Joint Defendants' need for the documents would overcome any claim of privilege." Mot. App. B at 16.

Third, they assert that some documents "may provide relevant evidence not otherwise available to Joint Defendants on the administration position on continued support for tobacco at the time it claimed it was misled by the tobacco industry's purportedly fraudulent conduct." Id. at 17. Finally, Joint Defendants contend that, to the extent that these documents contain discussions of cigarette taxes or prices, these communications "are highly relevant to Plaintiff's efforts to stop underage smoking and Plaintiff's economic motivations underlying its conduct regarding smoking," which Joint Defendants assert are relevant to their affirmative equitable defenses.

1. PRA061-0130-0131 [CD 6]

This document is an April 10, 1998 fax from the Treasury Department containing "draft background material in preparation for testimony by Lawrence Summers, Deputy Secretary, Treasury, before the Senate Commerce Committee, concerning Treasury's views of what price increase to expect under the McCain bill and what effect(s) this will have on youth smoking." 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 contains draft suggestions for Deputy Secretary Summers' congressional testimony. The Special Master further believes that Joint Defendants' need for this document outweighs Plaintiff's privilege interest. Although Joint Defendants have access to Deputy Secretary Summers' final congressional testimony, the draft QAs here relate to the impact of price increases on youth smoking, which is a highly relevant issue in this litigation. Moreover, the proposals here are not particularly candid or personal; there is no author identified, and the Special Master believes that the danger of future chill on agency communications caused by release of this document is minimal.

2. PRA061-0286-0287 [CD 7]

This document is a March 29, 1998 email from Joshua Gotbaum, Executive Associate Director, OMB, to Franklin D. Raines, Director, OMB and Jacob Lew, with copies to Joseph J. Minarik; Jill M. Blickstein, Program Examiner, Director's Office, OMB; Janet Himler, Program Examiner, Human Resources, OMB; Barry T. Clendenin; Richard J. Turman; Charles Konigsberg, Assistant Director for Legislative Affairs, OMB; and Linda Ricci, Associate Director, Communications, OMB, "providing OMB's views as to the "pluses" and "minuses" of the McCain bill as then drafted." Locke Decl. at 19. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. The document contains Mr. Gotbaum's analyses of the pros and cons of the McCain legislation, and his opinion that REDACTED REDACTED REDACTED REDACTED" The communication is therefore deliberative and predecisional.

The Special Master further believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. Here, the document provides a candid assessment, comments, and criticisms of the McCain bill by the Associate Director of OMB, Mr. Gotbaum. Such discussions are relevant to the claims and defenses in this case, particularly the relief Plaintiff seeks. Similar information is not available to Joint Defendants from other sources; therefore the Special Master believes that on balance, Joint Defendants' need for this information outweighs Plaintiff's privilege interest.

3. PRA061-1165-1166 [CD 8]

"This document consists of two emails from Daniel J. Chenok, Policy Analyst, Office of Information and Regulatory Affairs, OMB, concerning OMB's review of the environmental tobacco smoke provisions of the McCain bill." Locke Decl. at 19. The first is dated May 19, 1998, and is to Frank J. Seidl, III, with copies to Lori Schack, Program Examiner, Education, OMB; Richard J. Turman; Larry Matlack; Donald R. Arbuckle, Acting Administrator of OIRA, OMB; John F. Morrall, III; and Joshua Gotbaum. The second is dated May 21, 1998 and is to Mr. Seidl, with copies to Ms. Schack and Mr. Morrall. "Both emails present Ms. Schack's and Mr. Chenok's views as to the likely effect of the provisions as proposed and OMB's and the Occupational Safety and Health Administration's (OSHA's) views as to the desirability of the draft provisions." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the emails contain a discussion of certain provisions of the McCain bill and the impact those provisions would have on OSHA's authority, namely that REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."

Joint Defendants assert, with respect to this Challenged Document, that "[t]o the extent th[is] document discusses whether ETS causes disease or whether ETS exposure in the work place is a problem worthy of national or regulation, [it] . . . may contain important evidence, not otherwise available to Joint Defendants, that directly rebuts Plaintiff's allegations in this case." Mot. App. B at 4. The Special Master agrees that this document is relevant to the issue of Plaintiff's position on the scope of ETS regulation, and that this type of information is not available to Joint Defendants from other sources. Therefore the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants, notwithstanding Plaintiff's concerns regarding the future chilling effect that disclosure may have on agency discussions.

4. PRA062-0317-0324 [CD 14]

This document consists of three emails and two attachments. The first email (a) is a January 20, 2000 email from Cynthia A. Rice to Joshua Gotbaum and Victoria A. Wachino, with copies to J. Eric Gould and Eugenia Chough, "raising an issue about and proposing edits to draft language in the FY 2001 Budget regarding use of recoveries from the federal tobacco lawsuit and language about a proposed youth surcharge." Locke Decl. at 19. Two subsequent emails are (b) a January 20, 2000 email from Mr. Gotbaum to Ms. Rice, with copies to Ms. Wachino, Mr. Gould, Ms. Chough, and Frank J. Seidl, III, "suggesting an edit to Ms. Rice's proposed answer in (a); and (c) a January 22, 2000 email from Mr. Gotbaum to Ms. Rice, with copies to Ms. Wachino, Mr. Gould, Ms. Chough, and Mr. Seidl, further discussing and explaining Mr. Gotbaum's proposed edit." Id. at 19-20. "The two attachments are (d) a January 21, 1999 OMB Health Division draft background paper on "Tobacco Policies in the FY2000 Budget;" and (e) a January 7, 2000 table prepared by the Office of Tax Analysis at the Department of Treasury entitled "Estimated Revenue Effects of Increasing Tobacco Taxes," showing estimates of the effects of several potential tax increases for the FY 2001 Budget." Id. at 20. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege. It contains suggestions and opinions regarding tobacco-related budget issues, as well as proposed language for the budget. It is therefore deliberative and predecisional. The Special Master does not believe that Joint Defendants have established need for this document. The final budget, reflecting the Administration's policy, is available to Joint Defendants. Moreover, their arguments pertaining to their need for documents discussing spending tobacco revenues are tied to their affirmative equitable defenses, which are no longer part of this case.

5. PRA066-0236-0239 [CD 27]

Plaintiff has released the first page of this document (page 0236) and maintains its deliberative process privilege claim to the remainder (pages 0237-0239), which is a December 29, 1997 fax transmittal to Jonathan D. Gruber from Patrick G. Locke, with copies to Barry B. Anderson, Assistant Director, Budget Review, OMB; Joseph J. Minarik; Susanne D. Lind; Hugh T. Connelly and Mary C. Barth, Financial Economist, Budget Analysis and Systems, Budget Review, OMB, "transmitting and explaining an attached table showing the derivation of an estimated revenue increase over five years associated with a proposal to increase tobacco excise taxes. The document also includes two tables (not part of the fax) showing two proposed allocations of funds from a tobacco settlement." Locke Decl. at 20.

The Special Master recommends that the Court sustain the privilege claim for pages 0237-0239. Here, the documents contain financial projections resulting from a proposed increase in tobacco excise taxes: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The documents also contain proposed spending for revenues received. They are therefore deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have shown sufficient need for these documents. They assert that deliberations relating to increased revenues from tobacco payments and spending of such revenues relate to their affirmative equitable defenses. Because these defenses have been dismissed from the case, the Special Master does not believe that the documents are sufficiently relevant to justify overcoming Plaintiff's privilege interest.

6. PRA074-1140-1146 [CD 30]

This document is a September 16, 1998 memorandum from Bruce N. Reed and Elena Kagan to the Chief of Staff concerning "DPC, October Event Ideas" for the President. "These proposed events cover both tobacco and a number of non-tobacco topics, including health care, education, and crime." Reed Decl. at 13; see also Gonzales Decl. Ex. A at 5. Mr. Reed explains that "[t]he first page indicates that President Clinton reviewed the memorandum, and this copy includes his handwritten marginal notes as to a number of the different topics in the memorandum. The tobacco discussion offers possible Presidential actions concerning (a) the proposed Executive Order concerning OSHA and smoke-free workplaces; (b) tobacco counter advertising; and (c) a Department of Defense ("DoD") anti-tobacco plan." Id. Plaintiff claims the deliberative process and presidential communications privileges for this document.

The Special Master believes that this document qualifies for the presidential communications privilege, as it consists of a memorandum received by an immediate advisor to the President, his Chief of Staff, as well as the President himself, and contains the President's thoughts and opinions on a variety of policy issues. The Special Master does not believe that Joint Defendants can show need for policy proposals considered by the President, particularly when the majority of the document addresses non-tobacco issues.¹⁸

18 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

7. PRA078-0078-0078 [CD 47]

"This document is an October 7, 1998 email from Frederick J. DuVal, Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, EOP, to William H. White, Jr., Special Assistant to the President for Intergovernmental Affairs, WHO, EOP, with a copy to Emory L. Mayfield, Special Assistant to the Deputy Director, Intergovernmental Affairs, WHO, EOP, presenting his analysis as to likely upcoming legislative developments concerning tobacco and seeking guidance as to what actions the Administration can take to advance its priorities." Reed Decl. at 13; see also Gonzales Decl. Ex. A at 5. Plaintiff claims the deliberative process privilege for this document.

The Special Master agrees that the privilege applies to these deliberations relating to legislative developments, as Mr. DuVal flags an issue and requests it be made a priority. This document does not appear to relate to any of Joint Defendants' need arguments.

8. PRA078-0119-0119 [CD 54]

"This document is an October 3, 1997 email from Sherman G. Boone, Director, International Economic Council, NSC, EOP, to William K. Davis, Director, Legislative Affairs, NSC, EOP, discussing legislative developments concerning an amendment dealing with international tobacco issues, discussing Administration views and concerns on this issue, and asking that Mr. Davis keep alert to developments in Congress in this area." Reed Decl. at 14; see also Gonzales Decl. Ex. A at 5-6. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this email, which contains Mr. Boone's opinions and analysis: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The document is both deliberative and predecisional.

The Special Master does not believe that Joint Defendants have demonstrated need for this document. The communications refer to proposed amendments regarding international tobacco legislation; such amendments are publicly available to Joint Defendants from other sources. Moreover, the Special Master believes that disclosure of the subjective opinions of Administration employees regarding proposed amendments could create a chilling effect on future agency deliberations.

9. PRA078-0510-0517 [CD 65]

"This document consists of an email from Sandra Yamin, Legislative Analyst, Legislative Affairs, OMB, to a large group of White House and EOP personnel forwarding a draft Statement of Administration Position to Senator Ted Stevens on the FY 2000 Agriculture and Rural Development Appropriations bill. The email specifically notes that the letter is a draft and requests input from the recipients as to its content." Reed Decl. at 14; see also Gonzales Decl. Ex. A at 6. "The email also notes that Jacob Lew, the Director of the Office of Management and Budget and the proposed signatory to the draft letter, had not yet reviewed and commented upon the draft letter." Id. Plaintiff claims the deliberative process and presidential communications privilege for this document.

The Special Master recommends that the Court overrule the presidential communications privilege claim as it does not appear that this email was "`solicited and received' by the President or his immediate advisor in the Office of the President." Judicial Watch, 365 F.3d at 1123. Rather, the email was distributed to approximately 60 individuals in the Executive Office for final clearance of a draft letter to the Senate Committee on Appropriations. The substantive portion of the email (contained at pages 0513-0516)¹⁹ is protected by the deliberative process privilege, as it seeks review and comment on a proposed letter.

19 Pages 0510-0512 and 0517 contain no substantive information and are therefore not protected by the privilege.

The Special Master finds that Joint Defendants have not demonstrated need for the draft version of this letter, particularly in light of the fact that they have access to any final version that was released, and in light of the fact that the letter addresses issues other than tobacco.

10. PRA078-1011-1011 [CD 106]

"This document consists of two March 23, 1999 emails between Cynthia A. Rice and Martha C. Foley, Senior Legislative Counsel, Legislative Affairs, WHO, EOP, discussing possible scenarios that could arise in connection with Congress' consideration of pending tobacco legislation. The first email provides the author's opinion of the likelihood that the legislation might be subject to further amendment and proposes further action. The second email comments on the necessity for further action as described in the first email and explains the author's rationale for the comment." Reed Decl. at 14; see also Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these emails, as they contain candid discussions about proposed legislation and request guidance as to action proposed to be taken: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants have shown need for these communications, which essentially involve technicalities of the legislative process, and the Administration's position with respect to the technicalities.

11. PRA078-1016-1016 [CD 108]

"This document is an email from Barry J. Toiv, Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP, to Elizabeth Newman, Special Assistant to the Press Secretary, WHO, EOP, providing suggested changes to a statement of the Administration's position on pending legislation and a possible tobacco rider to the legislation. This document does not contain the draft proposed statement, but rather only contains the suggested edit." Reed Decl. at 15; see also Gonzales Decl. Ex. A at 6-7. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the email contains Mr. Toiv's proposals for changes to proposed language setting forth the Administration's position on pending legislation: " REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants can show need for these internal governmental deliberations providing recommendations for the Administration's position on the proposed legislation, as Joint Defendants have access to any final Administration policy, and because the government has a strong interest in encouraging agency employees to express opinions and recommendations, free from fear of public reprisal.

12. PRA078-1073-1074 [CD 112]

"This document consists of two emails between senior White House advisers and members of their staffs discussing prospects for particular tobacco legislation sought by the Administration." Reed Decl. at 15. The first is dated February 17, 1999 and is from Bruce N. Reed to Cynthia A. Rice, Elena Kagan, Laura Emmett, J. Eric Gould, Christopher Jennings, Jeanne Lambrew, and Devorah R. Adler, Assistant Director for Health Policy, DPC. The email "expresses Mr. Reed's opinion about what the Administration might be able to accomplish through legislation in the political climate at the time. Mr. Reed expressly requests Ms. Rice to gather particular information relating to tobacco issues that might be under consideration in Congress and report back to the group of recipients." Id. The second email is dated February 19, 1999 and is from Ms. Rice to Mr. Reed, Ms. Adler, Mr. Jennings, Ms. Emmett, Ms. Lambrew, Mr. Gould, and Ms. Kagan, and responds by providing the information requested by Mr. Reed.Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master believes that the presidential communications privilege applies as the email exchange contains a request from an immediate presidential advisor, Mr. Reed, soliciting information to assist him in the development of Administration policy. The Special Master does not believe that Joint Defendants have shown that these communications are directly relevant to a central issue in this case, particularly as Joint Defendants have tied their need arguments with respect to the issues discussed herein — recoupment and spending of tobacco revenue — to their affirmative equitable defenses which have since been dismissed from the case.²⁰

20 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

13. PRA078-1086-1086 [CD 113]

This document is a May 10, 1999 email from Martha C. Foley to Cynthia A. Rice, Charles E. Kieffer, Acting Associate Director, Legislative Affairs, OMB, and Sandra Yamin "providing a suggestion for a letter to Congress relating to tobacco legislation. The email also presents the author's strategy for achieving a particular goal with respect to the pending legislation." Reed Decl. at 15; see also Gonzales Decl. Ex. A at 7. 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 an immediate advisor to the President. The Special Master does believe that the deliberative process privilege applies, as the communications reflect the opinion of the author and the give-and-take of agency deliberations: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants have shown need for government deliberations addressing tactical considerations in the legislative process. Such deliberations reflect the process by which the Administration creates policy and should not be released to Joint Defendants.

14. PRA078-1093-1094 [CD 114]

This document is a March 17, 1999 email from Cynthia A. Rice to Bruce N. Reed, with copies to Cathy Mays, DPC, J. Eric Gould and Caroline R. Fredrickson, Special Assistant to the President for Legislative Affairs, Legislative Affairs, WHO, EOP, "recommending that Mr. Reed call certain senators regarding a proposed amendment to tobacco legislation offered by Senator Specter." Reed Decl. at 16; see also Gonzales Decl. Ex. A at 7. Messrs. Reed and Gonzales attest that the "communication took place between senior White House advisers who had broad and significant responsibility for formulating policy advice to be given to the President, and it was written in the course of gathering information to advise the President regarding the status of the amendment offered by Senator Specter." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims. First, Plaintiff has not shown that the information contained in this email was solicited and received by a high level presidential advisor in his duties of advising the President. The document only contains a list of the names and phone numbers of Senate Democrats that Mr. Reed was to call regarding an unspecified amendment. The document is purely factual and not deliberative in nature.

15. PRA078-1182-1182 [CD 130]

"This document consists of three June 7, 1999 emails discussing (very briefly) tobacco options to fund the Labor-HHS bill." Reed Decl. at 16; see also Gonzales Decl. at 7-8. The first is from Martha C. Foley to Cynthia A. Rice "offering her opinion with respect to one item;" the second contains Ms. Rice's response and follow-up; and, in the third, Ms. Foley forwards the prior two emails to Charles E. Kieffer and Mindy E. Myers, Special Assistant to the Deputy Director, Legislative Affairs, WHO, EOP.Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these emails, which reflect the opinions and suggestions of agency employees regarding funding a certain legislative proposal (" REDACTED REDACTED REDACTED ."). The Special Master does not believe that Joint Defendants can show need for this document, as it does not relate to their need arguments.

16. PRA078-1204-1205 [CD 132]

"This document consists of two May 10, 1999 emails discussing edits to a Statement of Administration position concerning an emergency supplemental appropriation." Reed Decl. at 16; see also Gonzales Decl. Ex. A at 8. The first is from Charles E. Kieffer to Martha C. Foley, with copies to Cynthia A. Rice and Sandra Yamin, "relating a suggestion as to language to be used and indicating the edits to be made." Id. The second is from Ms. Rice to a large group of White House and OMB personnel; it responds to the first and indicates "what possible edits are acceptable to the DPC." Id. at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master believes that page 1204 is protected by the presidential communications privilege, as it contains discussions regarding language to be used in a Statement of Administration position to be made by the Office of the President, and information provided to Ms. Rice in creating the statement. Page 1205 contains only a hex dump and is not protected by the privilege.

The Special Master does not believe that Joint Defendants have shown that these communications regarding proposals to legislation are directly relevant to a central issue at trial and are therefore unable to overcome the presumptive privilege.²¹

21 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

17. PRA078-1317-1317 [CD 143]

This document is a January 29, 1998 email from Thomas I. Freedman to Elena Kagan and Bruce N. Reed, with a copy to Mary L. Smith, "discussing how to interpret poll results on tobacco companies selling to children and Administration strategy for proposed tobacco legislation." Reed Decl. at 17; see also Gonzales Decl. Ex. A at 8. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master does not believe that Plaintiff has shown that this document was solicited and received by an immediate presidential advisor in order to provide advice to the President. Instead, the email was sent as an "FYI," and therefore more appropriately qualifies for the deliberative process privilege. The email contains Mr. Freedman's frank and candid opinion as to how to proceed regarding tobacco policy: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

Having reviewed Joint Defendants' need arguments²² and this Challenged Document in camera, the Special Master does not believe that Joint Defendants have shown that their need for this communication outweighs the government's interest in permitting its employees to share such candid opinions freely without fear of public reprisal.

22 Joint Defendants assert their belief that this document "contain[s] discussions on how Joint Defendant's alleged conduct impacts or influences youth smoking" which is relevant to Joint Defendants' ability to rebut "Plaintiff's claims that Joint Defendants' conduct, such as Joint Defendants' advertising, caused youth to begin smoking." Mot. App. B at 8. Hence, "[i]mportant to this inquiry are documents [such as Challenged Document 143] containing discussions of Joint Defendants' alleged marketing activities involving youth." Id. at 9.

18. PRA078-1591-1594 [CD 157]

"This document consists of four emails discussing an attached draft concerning `President Clinton Challenges the Congress to Act Now on the Nation's Health Care Priorities,' including concerning tobacco." Reed Decl. at 17; see also Gonzales Decl. Ex. A at 8. The first is dated June 21, 2000 and is from Anna Richter, Assistant Director for Domestic Policy, DPC, to "an undisclosed group of persons," with copies to Maria F. Mikitka, Program Examiner, Energy and Science, Natural Resources, Energy, and Science, OMB; Jennifer E. McGee; and Barbara Chow transmitting the draft statement. In the second email, Ms. Richter forwards the first email and attached statement to Mariah S. Seiber, Resource Assistant, National Security And International Affairs, OMB. The third email is Ms. Seiber's response to Ms. Richter, and the fourth is from Ms. Richter to Ms. Seiber, discussing the timing of obtaining edits to the draft statement. Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master believes that the presidential communications privilege applies, as this document is a draft presidential position statement on tobacco and other issues. The document is therefore presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that this draft is directly relevant to a central issue at trial, nor have they shown that similar information is unavailable with due diligence from other sources, particularly where they have access to any final version of this document.

19. PRA078-1920-1922 [CD 163]

"This document consists of two January 8, 2000 emails discussing possible net federal revenue from two cigarette tax proposals." Reed Decl. at 17; see also Gonzales Decl. Ex. A at 8. The first is from Joshua Gotbaum to John McClelland, Treasury, and Phil Ellis, Treasury, "with copies to a large group of Treasury, White House, and OMB personnel, responding to an email from the Treasury [addressing] Treasury's estimates of possible revenues and providing certain comments and questions." Id. at 18. The second is from Cynthia A. Rice to Mr. Gotbaum, "with copies to a large group of Treasury and OMB personnel, providing her interpretation of the Treasury numbers and instructing the addressees as to a change that the White House wants to make in the calculations." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1922, as it contains only a hex dump and a cc list, and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 1920-1921, as they contain agency employee deliberations, in the form of estimates of net revenues from different proposals. The Special Master does not believe that Joint Defendants have established need. While the communications refer, in part, to youth smoking, they address primarily payments that would be made if certain targets are not met.

Joint Defendants have argued that such communications are relevant to their affirmative equitable defenses, see Mot. App. B at 17-18, but because these defenses have been dismissed from the case, the Special Master does not believe that these communications are sufficiently relevant to the remaining claims and defenses to justify overcoming Plaintiff's privilege interest.

20. PRA078-1923-1924 [CD 164]

"This document consists of three emails discussing a need for a new estimate of revenue from a proposed tobacco assessment." Reed Decl. at 18; see also Gonzales Decl. Ex. A. at 9. The first is dated January 7, 2000, and is from Joshua Gotbaum to John McClelland and Phil Ellis, "with copies to a large group of Treasury, White House, and OMB personnel, noting the need for a new calculation." Id. The second is dated January 7, 2000, and is from Jason Furman, Senior Director and Senior Economic Advisor, NEC, OPD, to Cynthia A. Rice, relaying details from his call to Mr. Gotbaum about the first email. The final email, dated January 8, 2000, contains Ms. Rice's response to Mr. Furman and "her opinion/instructions as to what the White House wants and the reasons therefor." Id. Plaintiff claims the deliberative process privilege.

Page 1924 contains only a cc list and is therefore not protected by the deliberative process privilege. Page 1923 does qualify for the privilege, as it contains the internal discussions and proposals of agency employees. For example, Ms. Rice states " REDACTED REDACTED REDACTED REDACTED REDACTED." Similar to Challenged Document 163, this document relates in part to youth smoking, but primarily addresses penalties that should be imposed for failure to meet certain goals. Joint Defendants have tied such communications to their affirmative equitable defenses, which are no longer a part of this case. Mot. App. B at 11. The Special Master therefore recommends that the Court sustain the privilege claim for page 1923, notwithstanding Joint Defendants' claimed need.

21. PRA078-1961-1962 [CD 173]

This document is a January 13, 2000 email from Frank J. Seidl, III to Victoria A. Wachino and Cynthia A. Rice, with copies to Patrick G. Locke, Barry T. Clendenin and Richard J. Turman forwarding "an attached paper titled, `Major Tobacco Policies for the FY 2001 Budget.' The attachment includes a discussion of the proposed policies in the FY 2001 Budget (in preparation at the time) to raise cigarette excise taxes and levy youth smoking assessments tied to reductions in youth smoking rates." Locke Decl. at 20. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. The document appears to relate to predecisional communications and policy, as Mr. Seidl's email indicates that the draft "REDACTED REDACTED." The Special Master does not believe that Joint Defendants can show need for this document as it relates to proposed tobacco policy for the 2001 budget, and Joint Defendants have access to any final budget documents setting forth the Administration's policy.

22. PRA078-2802-2808 [CD 214]

"This document consists of two March 16, 1998 emails transmitting and discussing an attached draft event memo for a meeting with smoking and tobacco lobbyists." Reed Decl. at 18;see also Gonzales Decl. Ex. A at 9. The first is from Mary L. Smith to Bruce N. Reed, Elena Kagan, Christopher Jennings, with a copy to Jim Kohlenberger, Office of Chief Domestic Policy Advisor for the Vice President, OVP, "that references an attached draft memo and provides Administration strategy on the meeting to gain support for the Administration's goal for tobacco legislation; it also provides a proposed outline of discussion topics, providing substantive information within these topics." Id. The second is from Mr. Kohlenberger to Donald H. Gips, Chief Domestic Policy Advisor for the Vice President, OVP, and Toby Donenfeld, Office of the Chief Domestic Policy Advisor for the Vice President, OVP, forwarding the email and attachment described above. Id. Plaintiff claims the deliberative process and presidential communications privileges for this document.

The Special Master does not believe that the presidential communications privilege applies, as Plaintiff has not shown that the document was solicited and received by immediate presidential advisors for use in developing Administration policy proposals. Rather, it appears to be a proposal for a meeting with a group of lobbyists regarding tobacco legislation. Additionally, Plaintiff has not demonstrated how this document relates to agency policymaking. See Coastal States, 617 F.2d at 868 (government must show "what deliberative process is involved and the role played by the document in issue in the course of that process.").

23. PRA078-2836-2837 [CD 215]

This document consists of a March 27, 1998 email from Cynthia A. Rice to Julie Goldberg, Assistant Press Secretary, WHO, EOP, "that provides the author's analysis of critical background information necessary for further consideration by the Administration for an anticipated tobacco announcement by Senator McCain." Reed Decl. at 19; see also Gonzales Decl. Ex. A at 9. Plaintiff claims the deliberative process privilege.

The Special Master does not believe that this document qualifies for the privilege. Here, the document is factual and informative in nature, and does not appear to be deliberative or related to the agency's decisionmaking process:

REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACT.

Plaintiff has not met its burden in establishing that the deliberative process privilege applies. See Coastal States, 617 F.2d at 868 (agency must establish "what deliberative process is involved, and the role played by the document in issue in the course of that process.").

24. PRA078-2859-2860 [CD 217]

This document is a March 12, 1998 email from Jim O'Hara, HHS, to Jerold R. Mande, "providing the author's comments and analysis of the proposed McCain bill." Reed Decl. at 19; see also Gonzales Decl. Ex. A at 9. Plaintiff claims the deliberative process privilege.

The Special Master agrees that this document is protected by the deliberative process privilege, as it contains the comments of Mr. O'Hara and other government employees on the McCain bill, and therefore reflects the give-and-take of the agency's deliberative process. The Special Master does not believe that Joint Defendants have shown sufficient need for the opinions of Administration employees provided in connection with the McCain bill. Moreover, disclosure of such information could chill future candid and frank agency discussions.

25. PRA078-3043-3045 [CD 221]

This document is a March 26, 1998 email from Victor Zonana, HHS, to Stephen B. Silverman, EOP, "discussing proposed Administration strategies to support its tobacco policies, including participation in various tobacco events." Reed Decl. at 19; see also Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process privilege.

The Special Master does not believe that the document qualifies for the privilege. The document discusses scheduling matters and proposes action with respect to " REDACTED REDACTED REDACTED REDACTED REDACTED . Plaintiff has not demonstrated how this document relates to the formation of agency policy.

26. PRA079-0688-0688 [CD 227]

This document is an April 20, 1999 email from Cynthia A. Rice to Karin Kullman, Assistant Director of Presidential Scheduling, Scheduling, WHO, EOP; J. Eric Gould; Elena Kagan; Sarah A. Bianchi; Laura Emmett; and Bruce N. Reed, "seeking guidance to give the EPA on public service announcements on environmental tobacco smoke, and includes the author's deliberations on whether the EPA should make these announcements." Reed Decl. at 19-20;see also Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process privilege.

The Special Master agrees that this document is protected by the deliberative process privilege, as it reflects the give-and-take of the Administrations' deliberative process on public service announcements regarding ETS: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " Additionally, this document does not relate to Joint Defendants' need arguments regarding ETS, as Joint Defendants focus their need on communications addressing ETS disease-causation discussions and whether ETS should be legislated or regulated. Accordingly, the Special Master recommends that the Court sustain the privilege claim, notwithstanding Joint Defendants' claimed need.

27. PRA079-4484-4484 [CD 229]

"This document is an August 8, 1997 email from Eli G. Attie, Office of Deputy Chief of Staff for Communications, OVP, to Jordan Tamagni, Special Assistant to the President [a]nd Presidential Speechwriter, Speechwriting, Communications, WHO, EOP, regarding draft President and Vice President statements for certain planned tobacco events regarding protecting the public from environmental tobacco smoke." Reed Decl. at 20; see also Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master agrees that the presidential communications privilege applies to this document. Here, the email contains proposed language to be included in a speech regarding environmental tobacco smoke, and was solicited and received for the purpose of advising the President and Vice President with regard to policy. The Special Master does not believe that the need standard is met, as the document does not show that government officials believed questions existed as to whether ETS causes disease. See Mot. App. B at 3-4. Moreover, Joint Defendants do have access to the final versions of public speeches given by the President and Vice President on ETS issues.²³

23 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

28. PRA079-7423-7423 [CD 230]

"This document consists of draft QAs for upcoming testimony regarding environmental tobacco smoke, including the Administration's views on ETS rules for the hospitality industry and the ETS provisions in the McCain bill." Reed Decl. at 20;see also Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process privilege.

The Special Master agrees that the document qualifies for the deliberative process privilege as the QAs are in draft form and therefore still reflect the opinions of individual agency employees and not the Administration itself. The Special Master does not believe that Joint Defendants can make a showing of need sufficient to overcome Plaintiff's privilege interest as they have access to the final testimony given on April 1, 1998, and have not shown a need for any draft version.

29. PRA090-4477-4478 [CD 232]

"This document consists of OSHA comments to a new McCain bill section for environmental tobacco smoke for the Administration for review to further consider its strategy and position on the ETS provisions of the McCain Bill." Reed Decl. at 20; see also Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document as it proposes language to be added to the McCain bill, and is therefore predecisional and recommendatory in nature. Joint Defendants assert that, "[t]o the extent th[is] document discuss[es] whether ETS causes disease or whether ETS exposure in the work place is a problem worthy of national legislation or regulation . . . [it contains] important evidence, not otherwise available to Joint Defendants, that directly rebuts Plaintiff's allegations in this case." Mot. App. B at 4. The Special Master believes that these comments are relevant to Joint Defendants' need arguments, and that they are not candid or personal to any particular agency employee or employees to create a danger of future chill in agency discussions. It is unclear whether any final comments are available to Joint Defendants; on balance, however, the Special Master believes that Joint Defendants' need outweighs Plaintiff's privilege interest.

30. PRA090-5423-5423 [CD 233]

This document is a June 8, 1998 memorandum from Emily Sheketoff, a Department of Labor employee, to Cynthia A. Rice "concerning OSHA's proposed change to the McCain bill regarding smoking restrictions that was used by the Administration for review to further its strategy and position on the McCain bill." Reed Decl. at 20-21; see also Gonzales Decl. Ex. A at 10-11. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the deliberative process privilege. The document contains Ms. Sheketoff's recommendations for proposed language for the McCain bill, as well as the Department of Labor's interpretation of certain provisions and enforcement strategy: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."

Joint Defendants assert that, "[t]o the extent th[is] document discuss[es] whether ETS causes disease or whether ETS exposure in the work place is a problem worthy of national legislation or regulation . . . [it contains] important evidence, not otherwise available to Joint Defendants, that directly rebuts Plaintiff's allegations in this case." Mot. App. B at 4. The Special Master believes that this document is relevant to the issue of worthiness of regulation of ETS and, in balancing the relevant factors, that Joint Defendants' need for this document outweighs Plaintiff's privilege interest, particularly as the email is not so candid or personal in nature that future agency discussions would be chilled by its disclosure.

31. PRA092-3142-3142 [CD 235]

In support of its claim of deliberative process privilege, Mr. Reed states only that "[t]his document consists of handwritten notes taken during a meeting with North Carolina Governor Hunt regarding the OSHA indoor air standard and FDA tobacco rule." Reed Decl. at 21. The Special Master recommends that the Court overrule the privilege claim, as Plaintiff has not explained who authored the notes or how this document relates to the deliberative process of the Administration. See Coastal States, 617 F.2d at 868.

32. PRA170-4024-4024 [CD 236]

This document is a July 31, 1998 email from Cynthia Dailard to Cynthia A. Rice "reflecting internal deliberations on whether the Administration should update the SAMEC (Smoking Attributable Morbidity, Mortality and Economic Costs) study to include medical costs associated with environmental tobacco smoke, including a recommendation." Reed Decl. at 21; see also Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it contains the policy recommendations of Administration employees that REDACTED REDACTED REDACTED REDACTED .

Joint Defendants assert that, to the extent this document "relates to the validity of Plaintiff's conclusions that ETS is causally related to disease, it may contain important evidence, not otherwise available to Joint Defendants that directly rebuts Plaintiff's allegations in this case that there is no legitimate scientific controversy as to whether smoking causes disease." Mot. App. B at 4; see also id. at 3 ("This email is just one example of a document that is directly relevant to Joint Defendants' belief that legitimate questions exist regarding whether ETS causes disease."). In camera review of this document reveals that the discussions contained in the document do not relate to Plaintiff's conclusions regarding the validity of ETS causation; rather, the discussions essentially set forth Plaintiff's view that there is a causal connection between ETS and disease. Such information is already available to Joint Defendants, and they have not established independent need for the discussions in this email to justify overcoming the privilege.

33. PRA170-4204-4207 [CD 237]

This document is an April 9, 1998 email from Emily Sheketoff, Labor, to Cynthia Dailard "transmitting and discussing attached OSHA QAs on ETS that discuss whether the Administration believes ETS should be regulated and how such regulation could be accomplished. The discussion in the email includes a recommendation for additional information to be included regarding ETS." Reed Decl. at 21; see also Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege as it contains the opinions of agency employees regarding regulation of ETS. Joint Defendants assert that, "[t]o the extent th[is] document discuss[es] whether ETS causes disease or whether ETS exposure in the work place is a problem worthy of national legislation or regulation . . . [it contains] important evidence, not otherwise available to Joint Defendants, that directly rebuts Plaintiff's allegations in this case." Mot. App. B at 4. The Special Master believes that Joint Defendants need for this document, which does contain discussions of the extent to which the federal government should regulate ETS, outweighs Plaintiff's privilege claim. Joint Defendants have demonstrated the relevancy of this information, and the Special Master believes that the draft QA's are not so candid or personal in nature that their disclosure would chill future agency deliberations. With respect to the statement in the cover email that " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." the Special Master believes that, because the opinion reflected is that of a high-level Administrator, the danger of future chill that would result from this disclosure is minimal.

34. PRA171-0222-0222 [CD 247]

"This document is a June 22, 1998 email from Charles R. Marr, Senior Advisor for Budget Policy, National Economic Council, OPD, to Brian R. Barretto, Deputy Chief of Staff, NEC, OPD, providing background information/analysis on two senators' proposals for cigarette taxes and discussing the Administration's strategy in approaching these two proposals." Reed Decl. at 22;see also Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the document analyzes the differences between legislation proposed by Senator Hatch and that proposed by Senator McCain: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The email therefore contains a candid assessment of the proposed legislation.

Joint Defendants have argued that communications such as these are relevant to their affirmative equitable defenses. As these defenses are no longer a part of this case, and as Joint Defendants have not otherwise shown sufficient need for the opinions of Administration employees regarding the proposed settlement to justify overcoming Plaintiff's privilege claims, the Special Master recommends that Plaintiff's privilege claim for this document be sustained notwithstanding Joint Defendants' claimed need.

35. PRA171-0245-0246 [CD 249]

This document is an October 9, 1998 email from Jeanne Lambrew to Anne E. Tumlinson and William G. White "forwarding and briefly discussing her draft legislative language concerning `maintenance of effort [by states seeking funds under the legislation] on tobacco.'" Reed Decl. at 22; see also Gonzales Decl. Ex. A at 11. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the deliberative process privilege as it contains alternative proposals for legislative language, and seeks input on the viability of the proposals (" REDACTED REDACTED REDACTED REDACTED REDACTED").

Joint Defendants assert that documents pertaining to efforts that the federal government made to encourage states to enforce laws and enact programs to decrease the incidence of smoking are relevant to the claims and defenses here. The Special Master agrees, and recommends that the Court order Plaintiff to produce page 0246 to Joint Defendants. This page contains the alternative proposed language, and is not particularly candid or personal in nature (unlike the comments of the author contained in the cover email on page 0245), such that disclosure of this document is not likely to chill similar future agency discussions.

36. PRA171-0415-0415 [CD 263]

This document consists of two May 11, 1998 emails concerning an HHS tobacco legislative proposal. The first is from "Bradley M. Campbell, Associate Director For Toxics And Environmental Protection, CEQ, EOP, to Lisa M. Kountoupes, Special Assistant to the President for Legislative Affairs, WHO, EOP, with a copy to Paul J. Weinstein, Jr., Special Assistant to the President for Domestic Policy and Chief of Staff, DPC, relating and discussing concerns raised by DoJ and EPA to the proposal." Reed Decl. at 22; see also Gonzales Decl. Ex. A at 11. The second is from Mr. Weinstein to Cynthia A. Rice, Cynthia Dailard and Elena Kagan, forwarding the first and asking them if they are aware of the issues. Id. Plaintiff claims the deliberative process privilege.

The Special Master agrees that this document is protected by the deliberative process privilege. Mr. Campbell's email is frank and candid in nature: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The email is both deliberative and predecisional. Moreover, the Special Master does not believe that Joint Defendants can show sufficient relevancy to justify overcoming the deliberative process privilege, particularly where, as here, the email is highly candid and personal, and its disclosure could adversely impact such open discussion in the future.

37. PRA171-0474-0476 [CD 266]

Plaintiff released pages 0475-0476 of this document and continues to claim the deliberative process privilege for a May 18, 1998 email from Mary L. Smith to Cynthia Dailard and Thomas I. Freedman, contained on page 0474, "briefly characterizing the attached released talking points concerning the Sen. Ford and Sen. Lugar tobacco farmer bills." Reed Decl. at 22; see also Gonzales Decl. Ex. A at 12.

The Special Master recommends that the Court overrule the deliberative process privilege for the email, in which Ms. Smith states, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The email refers to Administration policy already created, and not to the creation of future agency policy, and as such does not qualify for the privilege.

38. PRA171-0528-0531 [CD 270]

"This document is a June 8, 1998 email from Jake Siewert, Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP, to Amy Tobe, WHO, EOP, and Darby Stott, Staff Assistant, Press Secretary, WHO, EOP, transmitting and discussing draft press guidance concerning (principally) Social Security and the Budget, with a reference to how the Administration will fund certain of its initiatives without comprehensive tobacco legislation." Reed Decl. at 23; see also Gonzales Decl. Ex. A at 12. Plaintiff claims the deliberative process privilege.

The Special Master agrees that the document qualifies for the deliberative process privilege, as Mr. Siewert states in his cover email that they " REDACTED REDACTED ." and therefore the document is a proposed draft. The Special Master further believes that Joint Defendants cannot show need for this document, as it contains proposed answers for policy issues other than tobacco, and because Joint Defendants have not shown a need for draft documents of public statements when they have access to the final versions.

39. PRA171-0546-0546 [CD 275]

This document is an April 4, 1997 email from Elizabeth Drye to Bruce N. Reed and Elena Kagan "seeking guidance as to how the White House should deal with HHS with respect to obtaining information on HHS-proposed tobacco options." Reed Decl. at 23;see also Gonzales Decl. Ex. A at 12. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim, as it simply reports on the status of a proposal from HHS and, while it provides Ms. Drye's candid opinion, her thoughts only address the timing of when the proposal will be submitted, and not the actual substance of any proposal.

40. PRA171-0684-0685 [CD 277]

This document is a February 23, 1998 email from Cynthia A. Rice to Bruce N. Reed, with copies to Thomas I. Freedman, Cathy Mays, and Elena Kagan, "transmitting a draft proposed memorandum for the Chief of Staff from Mr. Reed concerning a meeting on `Tobacco Strategy.' The draft memorandum presents topics that the DPC believes should be discussed at the meeting." Reed Decl. at 23;see also 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, as the document contains a memorandum solicited and received by the President's Chief of Staff in order to prepare for a meeting on tobacco. The Special Master does not believe that Joint Defendants have shown that internal presidential communications pertaining to meetings to discuss tobacco strategy are directly relevant to this matter.²⁴

24 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

41. PRA171-0767-0767 [CD 278]

This document is an April 1, 1998 email from Sally Katzen, Deputy Assistant to the President for Economic Policy and Deputy Director, NEC, OPD, EOP, to Gene Sperling, "with copies to Brian A. Barreto, Deputy Chief of Staff, NEC, OPD, Peter Weissman, Executive Assistant, NEC, OPD, Melissa G. Green, Special Assistant, NEC, OPD, and Jonathan A. Kaplan, Chief of Staff, NEC, OPD, reporting on and analyzing a deputies meeting that discussed items to be discussed at an upcoming principals meeting, including tobacco." Reed Decl. at 24; see also Gonzales Decl. Ex. A at 12. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim, as the document does not contain substantive, deliberative discussion, and instead does no more than inform the recipients that there had been a meeting to discuss tobacco issues.

42. PRA171-0838-0839 [CD 284]

This document contains two March 11, 1998 emails. The first is from Richard J. Turman to Cynthia A. Rice, "with copies to a group of OMB personnel, with suggested edits to the Statement of Administration Position to be sent concerning the Harkin/Chafee tobacco legislation to be made by the President." Reed Decl. at 24; see also Gonzales Decl. Ex. A at 12. The second is from Ms. Rice to Laura Emmett relaying further edits to the OMB suggestions from Bruce N. Reed. Id. 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 suggested changes to a statement to be made by the President, and these comments and proposals appear to have been solicited and received by high-level presidential advisors in the course of their duties of advising the President and formulating the Statement of Administration Position. The emails are therefore presumptively privileged, and the Special Master does not believe that Joint Defendants can show that draft Statements of Administration Position on proposed legislation are directly relevant to issues central to this matter, nor that sufficient evidence could not be discovered from other sources, particularly where Joint Defendants have access to any final Statements of Administration Position on this issue.²⁵

25 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

43. PRA171-0890-0892 [CD 287]

This document is a December 9, 1997 email from Jerold R. Mande to Christopher Jennings, Donald H. Gips, Sarah A. Bianchi, Toby Donenfeld, Thomas I. Freedman and Bruce N. Reed, "providing draft press guidance concerning (1) Administration efforts to obtain comprehensive tobacco legislation and (2) recoupment." Reed Decl. at 24; see also Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Here, there is no indication that the QAs are in draft form, as they are not marked as a draft, and as the cover email does not indicate that they are in draft form, nor does it solicit comments on the press statements. Particularly where, as here, the purported draft seeks to set forth Administration policy, the privilege does not apply.

44. PRA171-0903-0903 [CD 288]

This document is a June 3, 1998 email from Cynthia A. Rice to Joshua Gotbaum, Cynthia Dailard, and Richard J. Turman, "briefly reporting on discussions with Sen. Leahy concerning tobacco legislation amendments and more extensively discussing internal Administration positions and recommendations with respect to positions the Administration should take, as well as raising issues that must be resolved with respect to the proposed legislation." Reed Decl. at 25; see also Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain this privilege claim. The document contains Ms. Rice's opinions on Senator Leahy's proposed amendment ( REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED), and asks for the recipients to REDACTED REDACTED REDACTED REDACTED . The document therefore is both deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown a need for documents relating to efforts made by Plaintiff to combat tobacco smuggling.

45. PRA171-0965-0965 [CD 290]

"This document is a May 21, 1998 email from Marc Garufi, Program Examiner, Health, OMB, to a large group of OMB personnel discussing the results of the OMB Health Division's review of a proposed letter from the Department of Interior to the Senate Commerce Committee concerning the Indian-related provisions of the proposed McCain legislation, and discussing the absence of one particular provision in the latest version of the bill received by OMB." Locke Decl. at 21. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Although the email embodies Mr. Garufi's concerns regarding a specific provision of the McCain bill, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ," it appears to be informative in nature and not part of the agency's deliberative process.

46. PRA171-0996-0997 [CD 291]

This document consists of two May 19, 1998 emails. The first is from Richard J. Turman to Joshua Gotbaum "with copies to a large group of OMB personnel, reporting on a White House meeting that provided an internal assessment of the status of developments in the Senate concerning the McCain legislation and likely or possible amendments (including recommended Administration positions) and Administration strategy towards obtaining the legislation that it wants." Locke Decl. at 21. In the second email, Mr. Turman forwards the first to Cynthia A. Rice. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. The document contains the opinions of staff with regard to proposed amendments (" REDACTED REDACTED REDACTED REDACTED ."), as well as suggestions about how to proceed: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The document is therefore both deliberative and predecisional. Moreover, the Special Master does not believe that Joint Defendants have shown need for communications relating to internal agency discussions regarding proposed amendments to legislation.

47. PRA171-1002-1003 [CD 292]

This document contains two May 19, 1998 emails. The first is from Thomas I. Freedman to Joshua Gotbaum, T.J. Glauthier, and Mark A. Weatherly, Chief, Agriculture Branch, Natural, Resources, Energy, and Science, OMB, with a copy to Mary L. Smith, forwarding a draft letter from the President to Sen. Ford concerning the senator's proposed tobacco legislation. Reed Decl. at 25; see also Gonzales Decl. Ex. A at 13. The second is from Ms. Smith to Lois Altoft, Confidential Assistant, Administration, OMB, forwarding the first and asking that she have Mr. Gotbaum review the proposed letter. Id. 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 President's advisors are reviewing a draft letter to be sent by the President to Senator Ford. The document is therefore presumptively privileged. The Special Master does not believe that Joint Defendants have shown that a draft of a presidential letter sent to a member of Congress sponsoring legislation is directly relevant to a critical issue in this case, nor have they shown that sufficient evidence is not available elsewhere, particularly as Joint Defendants would have access to any final version of this letter.²⁶

26 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

48. PRA171-1020-1020 [CD 293]

This document is a May 14, 1998 email from Cynthia Dailard to Elizabeth Newman "providing edits to a proposed Administration statement concerning a draft tobacco statement regarding proposed tobacco legislation." Reed Decl. at 25; see also Gonzales Decl. Ex. A at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the deliberative process privilege claim. Here, Ms. Dailard's suggestions merely are editorial in nature, and not deliberative.

49. PRA171-1207-1224 [CD 297]

This document is an April 10, 1998 email from William J. Fox, a Treasury employee, to Cynthia Dailard, "forwarding Treasury Department's side-by-side analysis of the McCain legislation's tobacco licensing provisions, including Treasury's comments concerning changes that should be made to the proposed legislation and its analysis of the two different proposals." Reed Decl. at 26; see also Gonzales Decl. at 13. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the deliberative process privilege claim. Here, the document compares provisions in the McCain bill with those in the Administration's proposal and provides Treasury's opinion on the differences, such as " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The document therefore appears to explain Treasury's position, and this conclusion is supported by Mr. Fox's email.

50. PRA171-1451-1457 [CD 303]

Plaintiff has produced a portion of this document and continues to maintain the deliberative process privilege for "an email string discussing proposed legislation concerning HUD support for Indian smoke shops." Reed Decl. at 26;see also Gonzales Decl. at 14. The emails are as follows: (a) October 23, 2000, from Cameron N. Cohen, WHO, EOP, to Andrea Kane, "forwarding the released email from George Waters and seeking guidance as to how the Administration should respond to the problem outlined in the Waters email;" (b) October 23, 2000 from Ms. Kane to Mr. Cohen, with copies to Mary L. Smith and Michael Deich, Associate Director, General Government and Finance, OMB, "discussing a provision in the bill concerning the issue and how the Administration should work with HUD with respect to how to implement the bill;" (c) October 24, 2000 from Ms. Kane to Mr. Cohen and Lynn G. Cutler, Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, EOP, discussing the press guidance that was released; and (d) October 24, 2000 from Mr. Cohen to Ms. Kane responding to (c); and (e) October 24, from Ms. Kane to Ms. Smith, DPC, forwarding (a)-(d). Id.

The Special Master recommends that the Court sustain the privilege claim for the emails, which are contained on pages 1451-1452 of this document. The correspondence notes that REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED. Ms. Kane provides her thoughts and opinions in response.

The Special Master does not believe that Joint Defendants have demonstrated that communications relating to the impact a HUD appropriations bill may have on Indian smoke shops are sufficiently relevant to the claims and defenses in this matter to justify overcoming the deliberative process privilege.

51. PRA171-1490-1490 [CD 305]

This document is an August 23, 2000 email from Andrea Kane to Christina S. Ho, Assistant Director for Domestic Policy, DPC, relating a call from Kevin Burke, HHS employee, "who was asked by Sen. Durbin's office for the Administration's reaction to proposed tobacco legislation." Reed Decl. at 26; see also Gonzales Decl. Ex. A at 14. "Ms. Kane seeks guidance as to who within the Administration should participate in reviewing the proposed legislation and determining the Administration's proposed response. The second issue Ms. Kane discusses is the Synar Amendment issue, as to which she also seeks guidance as to who within the Administration should be involved in the discussion with respect to how to handle this issue." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document discusses issues regarding the Durbin bill and Synar amendment, stating: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Ms. Kane then proposes a course of action.

The Special Master does not believe that Joint Defendants have shown need for communications that address how the Administration should go about forming a response to proposed language. Moreover, as the deliberative process privilege is particularly concerned with the process by which an agency formulates a decision, the Special Master believes that Plaintiff's interest in its privilege outweighs Joint Defendants' purported need.

52. PRA171-1508-1510 [CD 307]

Plaintiff has released a portion of this document and continues to maintain the deliberative process privilege for two October 10, 2000 emails. The first is from John Winski, "an employee of the Council on Environmental Quality detailed to work on the staff of the Vice President, to a large group of White House and OMB personnel, reporting on and analyzing proposed legislation to aid burley tobacco growers and discussing how to respond to requests from other tobacco interests for similar aid." Reed Decl. at 27; see also Gonzales Decl. at 14. The second is from Andrea Kane to Barbara Chow, Jennifer E. McGee, Wesley P. Warren, OMB employee, Joshua Gotbaum, and Christina S. Ho, "seeking OMB's views on the proposed legislation and other requests for financial assistance." Id.

The Special Master recommends that the Court sustain the privilege claim, as the document contains Ms. Kane's candid opinions regarding legislation that would aid burley tobacco growers, but not flue-cured tobacco growers: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " The Special Master further believes that Joint Defendants have not shown a need for deliberations relating to the Administration's position regarding tobacco farmers to justify overcoming Plaintiff's privilege interest, as their need arguments on this issue are tied to the now-dismissed affirmative equitable defenses.

53. PRA171-1511-1516 [CD 308]

This document is included within Challenged Document 303. Reed Decl. at 27. Consistent with the recommendation for Challenged Document 303, the Special Master recommends that Plaintiff's deliberative process privilege claim be sustained notwithstanding Joint Defendants' purported need for this information.

54. PRA171-1549-1562 [CD 311]

This document consists of five emails, plus attachments. They are: (a) an April 10, 1998 email from Cynthia A. Rice to Richard J. Turman and "a large number of White House and OMB personnel, providing suggested questions and answers for internal use by Administration officials to prepare for appearances on upcoming talk shows;" (b) an April 11, 1998 email from Mr. Turman to a large group of OMB personnel, forwarding (a); (c) an April 13, 1998 email from Mark E. Miller to Joshua Gotbaum with copies to Mr. Turman, Barry T. Clendenin and Jill M. Pizzuto, "asking whether one of the suggested answers represents a change in Administration position from what he understood it to be;" (d) an April 14, 1998 email from Mr. Gotbaum to Ms. Rice, with copies to Mr. Miller, Mr. Turman, Christopher Jennings and Jeanne Lambrew, "forwarding Mr. Miller's query and suggesting a future change in the answer to the question at issue;" and (e) an April 14, 1998 email, from Mr. Jennings to Sarah A. Bianchi forwarding (a) — (d). Locke Decl. at 21-22. "The attachments are the internal questions and answers proposed to be used by the Administration officials, covering numerous topics, including the status of the McCain bill; the likely effect of the legislation on prices and smoking levels, including among youth; how the Federal funds raised by the legislation will be used; the risk of bankruptcy to tobacco companies; smuggling; how much lawyers should receive; tobacco farmers; and international tobacco provisions of the McCain bill." Id. at 22. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1551 (which contains only a cc list), page 1552 (which contains only an unreadable hex dump), and for pages 1553-1562, which contain QA's which, although apparently were intended for internal use, still reflect the Administration's position on tobacco issues. The cover emails are deliberative and predecisonal, as they discuss proposed future responses; therefore pages 1549-1550 are protected by the deliberative process privilege. After in camera review, the Special Master is not persuaded that Joint Defendants have shown sufficient need for these communications satisfactory to outweigh Plaintiff's privilege interest.

55. PRA171-1565-1570 [CD 312]

This document is a June 12, 1998 email from Frank J. Seidl, III to Cynthia Dailard and Richard J. Turman, "transmitting a table listing proposed amendments to the McCain legislation and listing OMB's views as to whether it opposes, is neutral towards, or supports the proposed amendments, and also includes views of other EOP components and other Executive Branch agencies with respect to these proposed amendments." Locke Decl. at 22. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this email and the attached chart, as these documents appear to reflect the actual position of OMB and other agencies with respect to proposed amendments to the McCain legislation, and is not deliberative or predecisional in nature.

56. PRA171-1704-1724 [CD 322]

This document is a January 29, 1999 email from J. Eric Gould to Laura Emmett and Cynthia A. Rice, "transmitting draft OMB press guidance concerning various tobacco issues that are to be given to HHS and Treasury to assist their officials with the FY 2000 Budget roll-out" which include edits made by the DPC. Reed Decl. at 27; see also Gonzales Decl. Ex. A at 14-15. "The topics of the draft press guidance are: Medicaid Tobacco Recoupment Policy; Federal Lawsuit (non-responsive); Tobacco Taxes and Smuggling; Cigarette Price Increases; Costs of Smoking to Medicare and Medicaid; Medicaid Tobacco Recoupment Policy; Uses of Additional Tobacco Revenues; Protection for Tobacco Farmers; FDA Authority to Regulate Tobacco Products; Tobacco — Public Health Spending; Child Care and Tobacco Funding; Tobacco — Medicaid Recoupment and State Grants; and USDA Tobacco User Fee." Id.

The Special Master recommends that the Court overrule the privilege claim. Mr. Gould's email notes that the QA " REDACTED REDACTED REDACTED REDACTED." The QA therefore appear to have been prepared to explain the Administration's position on the Budget, and therefore serve to explain a final decision, albeit with some minor edits.

57. PRA171-1802-1802 [CD 329]

This document consists of two January 15, 1999 emails. The first is from Thomas I. Freedman to Cynthia A. Rice, "discussing and critiquing OMB's possible revised bullet for language in the Budget concerning tobacco, and providing DPC's alternative views, as well as discussing assisting tobacco farmers." Reed Decl. at 28; see also Gonzales Decl. Ex. A at 15. The second is from Ms. Rice to Elena Kagan, Laura Emmett and Bruce N. Reed, copied to Mr. Freedman and forwarding the first. 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 how these communications were "solicited and received" by a high-level presidential advisor "in the course of preparing advice for the President." In re Sealed Case, 121 F.3d at 750, 752. The Special Master does believe that the deliberative process privilege applies, as the document contains Mr. Freedman's views on OMB's budget proposals: " 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 that the Administration's deliberations with regard to the effect of legislation on tobacco farmers are sufficiently relevant to this matter to justify overcoming Plaintiff's deliberative process privilege interest, as Joint Defendants' need arguments relate to their nowdismissed affirmative equitable defenses.

58. PRA201-1130-1132 [CD 344]

This document is a January 7, 1998 email from Mary C. Barth to Marc Garufi, with copies to Barry T. Clendenin, Richard J. Turman and Richard P. Emery, Jr. "discussing what to say in the 1999 Budget and accompanying documents concerning proposed tobacco-related revenue increases." Locke Decl. at 22. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1130-1131, which contain only document identification numbers and no substantive information. The Special Master recommends that the Court sustain the privilege claim for Ms. Barth's email, contained on page 1132, as it sets forth her candid and personal position on proposed Budget language: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The email therefore is both deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants have shown need for this document as Joint Defendants have argued that communications such as this are relevant to their affirmative equitable defenses. See Mot. App. B at 11. As these defenses are no longer a part of this case, the Special Master does not believe that such discussions are sufficiently relevant to the remaining claims and defenses herein to justify overcoming Plaintiff's privilege interest.

59. PRA201-1325-1327 [CD 345]

This document contains two February 23, 1998 emails. The first is from Richard J. Turman to Robert Pellicci, with copies to Joshua Gotbaum, Barry T. Clendenin, Jill Pizzuto and Larry Matlack, "concerning draft OSHA testimony on the Sen. Conrad tobacco bill re: environmental tobacco smoke; Mr. Turman highlights statements in the proposed testimony that he believes should be checked for conformity with Administration positions." Locke Decl. at 23. The second is from Mr. Clendenin, forwarding the first email to Ann Kendrall, Program Examiner, Health and Human Services Branch, Health/Personnel, OMB, and Thomas Reilly. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1325-1326, as these pages contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 1327, as it contains agency deliberations regarding draft OSHA testimony regarding ETS.

Joint Defendants have argued that this "document likely contain[s] testimony as to whether ETS causes disease or discussions and analyses of that testimony, or whether ETS exposure in the workplace is a problem worthy of national legislation or regulation. This information is not otherwise available to Joint Defendants and may directly rebut Plaintiff's allegations in this case." Mot. App. B at 4-5. The Special Master does not believe, however, that Joint Defendants have established need for comments relating to draft testimony, as they have access to the government's final position on ETS issues.

60. PRA201-1370-1372 [CD 346]

This document is a duplicate of Challenged Document #345, except that the second email is from Robert Pellicci, forwarding the first email to Jerold R. Mande. Locke Decl. at 23. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1370 and 1372, as they contain only document identification numbers and no substantive information. The Special Master further recommends that, consistent with the recommendation for Challenged Document 345, the Court sustain the privilege claim for page 1371, notwithstanding Joint Defendants' claim of need.

61. PRA201-1372-1375 [CD 347]

This document contains three February 23, 1998 emails. The first is from Robert Pellicci to Larry Matlack, Lori Schack, and Richard J. Turman, with copies to James C. Murr, Assistant Director, Legislative Reference Division, OMB, and Janet R. Forsgren, "informing them of changes to be made to proposed OSHA testimony on environmental tobacco smoke (in response to concerns raised in the first email in Challenged Document #345)." Locke Decl. at 23. The second is from Mr. Turman to Joshua Gotbaum, Jill Pizzuto and Barry T. Clendenin, with copies to William G. White, Jim Esquea, and Marc Garufi, forwarding the first, and the third is from Mr. Clendenin to Mr. Turman, forwarding the prior two emails and commending him for his work in this matter. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1372-1373, as they contain only document identification numbers and no substantive information, and for page 1374, which contains non-substantive emails. The Special Master recommends that the Court sustain the privilege claim for page 1375, which sets forth proposed changes for the OSHA testimony discussed supra with respect to Challenged Document 345: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

Similar to Challenged Document 345, the Special Master does not believe that Joint Defendants can show need for discussions regarding proposed changes to draft testimony when they have access to the final testimony, and therefore recommends that the Court sustain the privilege claim for page 1375 notwithstanding Joint Defendants' claim of need.

62. PRA205-0584-0586 [CD 382]

"This document is an April 5, 1996 email from Daniel W. Costello, Program Examiner, National Security and International Affairs, OMB, to Phebe N. Vickers, Deputy Associate Director, National Security and International Affairs, OMB, suggesting a possible course of action with respect to the sale of low cost tobacco products at military facilities." Locke Decl. at 24. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0584-0585, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0586, in which Mr. Costello suggests an aspect of potential agency policy (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED), and REDACTED REDACTED REDACTED REDACTED REDACTED. The document therefore reflects the give-and-take of agency policymaking.

Joint Defendants have argued that documents relating to fostering cigarette smoking in the military are relevant to their affirmative equitable defenses. Mot. App. B at 24. As these defenses are no longer part of this case, the Special Master does not believe that Joint Defendants have shown need, and therefore recommends that the Court sustain the privilege claim.

63. PRA207-0512-0515 [CD 386]

This document contains three emails. The first is dated January 6, 1999 and is from Philip R. Dame, Deputy Assistant Director, Budget Analysis and Systems, Budget Review, OMB, to Jennifer M. Forshey, Program Examiner, Health/Personnel, OMB; Elizabeth Rossman, Budget Preparation Specialist, Budget Review, OMB; Patrick G. Locke; Susanne D. Lind and Ellen J. Balis, Financial Economist, Budget Analysis and Systems, Budget Review, OMB, "concerning tobacco cost recovery estimates and how to obtain the best number for the 2000 Budget." Locke Decl. at 24. The second is from Ms. Forshey to Mr. Dame, with a copy to Richard J. Turman, commenting on the first email and asking to be kept informed. The final email is from Mr. Turman to Barry T. Clendenin; Frank J. Seidl, III; Melany Nakagiri, Program Examiner, Health/Personnel, OMB; and Ms. Forshey, commenting on the first two emails. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0512-0513 as these pages contain only document identification numbers and no substantive information. The Special Master recommends that the Court sustain the privilege claim for pages 0514-0515, as these pages contain agency deliberations and discussions regarding appropriate tobacco cost recovery efforts, and whether REDACTED REDACTED.

The Special Master does not believe that Joint Defendants have shown need for the discussions contained within this document. Joint Defendants argue that discussions of tobacco recovery are relevant to their affirmative equitable defenses, which are no longer part of the case. See Mot. App. B at 11. The discussions are not sufficiently relevant to the remaining claims and defenses justify overcoming Plaintiff's privilege interest.

64. PRA210-0629-0631 [CD 392]

This document is a June 16, 1998 email from Jerold R. Mande to Bruce N. Reed, Elena Kagan, Cynthia A. Rice, and Christopher Jennings, "suggesting preparing press guidance concerning assigning blame for the defeat of tobacco legislation." Reed Decl. at 28; see also Gonzales Decl. Ex. A at 15. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0629-0630, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0631, which suggests adding a QA addressing the question of REDACTED REDACTED REDACTED REDACTED, and proposes a response to this question. The email is therefore recommendatory in nature.

The Special Master further believes that Joint Defendants have not shown a need for internal predecisional Administration discussions pertaining to policy statements setting forth the Administration's views regarding assessing blame for the failure of the McCain legislation.

65. PRA213-0669-0674 [CD 396]

This document contains two April 24, 1998 emails. The first is from Richard J. Turman to Joshua Gotbaum "with copies to a large group of OMB personnel, providing a report on a DPC tobacco strategy meeting, including concerning an upcoming Presidential announcement on smoking and minority groups; meetings between the Administration (including the President) and Sen. McCain; and discussion of Administration strategy with respect to possible legal challenges to certain proposals for youth smoking surcharges." Locke Decl. at 24; see also Gonzales Decl. Ex. A at 15. The second is from Barry T. Clendenin "thanking Mr. Turman for the detailed report." Id. at 24-25. Plaintiff claims the deliberative process, presidential communications, and attorney-client privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0669-0670 and 0674, which contain only document identification numbers and no substantive information. With respect to the attorney-client privilege claim, only one paragraph on page 0672, beginning with " REDACTED REDACTED." reveals confidential legal advice being sought and received (addressing REDACTED REDACTED ), and therefore qualifies for the privilege.

With respect to the presidential communications privilege, this email summarizes a meeting of the Domestic Policy Council's Tobacco Strategy Meeting, a meeting with White House officials and Senator McCain, which the President briefly attended, and current events regarding the development of tobacco policy, but does not appear to contain or solicit information to be used by immediate presidential advisors in the course of preparing advice for the President. In re Sealed Case, 121 F.3d at 750. The Special Master therefore recommends that the Court overrule the presidential communications privilege claim.

The Special Master does believe that the deliberative process privilege applies, as the email memorializes recommendations and suggestions for policy and action. For example, the email states that " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

Joint Defendants assert that this document "seem[s] to address the existence and effectiveness of the MSA and other programs . . . [and is therefore] highly relevant to Joint Defendants' case because [it] go[es] to the heart of whether Plaintiff can meet its burden of demonstrating that there exists a reasonable likelihood of future misconduct." Mot. App. B at 7. The Special Master has reviewed the document and notes that it does not contain the discussions that Joint Defendants speculate it contains, and that Joint Defendants have not shown need for discussions, not otherwise protected by the attorneyclient privilege, contained in this email.

66. PRA213-0848-0853 [CD 397]

This document is an April 17, 1998 email from Richard J. Turman "to a large group of OMB personnel providing a report on a DPC tobacco strategy meeting, including concerning various Executive Branch agency views on the McCain bill (policy concerns, with conflicting suggestions from different agencies; big policy issues/problems as to which the Administration must formulate policies; international and smuggling/licensing issues) and other tobacco-related matters, including coordinating policy on Native American smoking issues, and the lawsuit challenging the FDA tobacco regulation." Locke Decl. at 25. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0848-0849 which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0850-0853, which contain a discussion of a tobacco strategy meeting, and includes a list of " REDACTED REDACTED ," as well as action taken on other policy issues.

The Special Master does not believe that Joint Defendants have shown need for documents containing internal agency discussions of general ongoing tobacco-related issues, particularly where the communications reveal the process by which the agency makes decision, which the deliberative process privilege is particularly concerned with protecting.

67. PRA215-0270-0273 [CD 420]

Plaintiff describes this document as "an undated (but very likely December 1998 or January 1999) OMB 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 25. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the deliberative process privilege claim for pages 0270-0271, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0272-0273 which contains " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED . The document contains specific rationales for the proposals, and suggestions for implementation.

The Special Master does not believe that Joint Defendants have shown need for this document. Here, the document discusses raising revenue from youth smoking penalties. Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses, which are no longer part of this matter. Thus, the communications are no longer sufficiently relevant to justify overcoming Plaintiff's privilege interest.

68. PRA221-0275-0279 [CD 428]

"This document consists of three emails concerning a tobacco-related amendment proposed by Sen. Harkin to an FY 2000 appropriations bill." Locke Decl. at 25. The first is dated October 29, 1999 and is from Victoria A. Wachino to Charles E. Kieffer, Robert L. Nabors, Senior Advisor to the Director, OMB, and Adrienne Erbach, Senior Advisor to the Deputy Director, OMB, "with copies to a large group of White House and OMB personnel, transmitting and briefly characterizing three papers describing the proposal and suggesting revised legislative language (the papers are not part of this document)." Id. The second is from Richard J. Turman "to a large group of OMB personnel about HHS involvement in reviewing the Harkin amendment;" and the final is from Barry T. Clendenin to Mr. Turman thanking him for his work. Id. at 25-26. Plaintiff claims the deliberative process and attorney-client privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0275-0276, which contain only document identification numbers and no substantive information, and for page 0279, which contains only a cc list and an unreadable hex dump. The Special Master recommends that the Court overrule the attorney-client privilege as Plaintiff has not demonstrated how this document contains or reveals confidential information provided to counsel to obtain legal advice.

The Special Master further recommends that the Court sustain the deliberative process privilege claim for pages 0277-0278, which contain an explanation as to draft documents and proposals to legislation, including the suggestion that " REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for documents pertaining to internal discussions relating to the language of proposed legislation.

69. PRA233-0013-0015 [CD 431]

Plaintiff describes this document as "a draft paper dated March 5, 1998 entitled `Key concerns about S. 1415,' a draft statement listing amendments that the Administration believes should be made to the McCain tobacco bill." Locke Decl. at 26. Mr. Locke notes that "[t]he paper includes notations about material to be added and other material to be verified." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0013-0014, which contain only document identification numbers, and no substantive information. The Special Master further believes that page 0015, which contains a draft list of concerns and proposed changes to the legislation, qualifies for the privilege. As it is in draft form, it contains the opinions and suggestions of agency employees and not the final policy of the agency.

The Special Master does believe that Joint Defendants' need for this document outweighs the government's privilege claim. Although it is a draft and contains notations regarding information to be verified or added, the issue discussed — the Administration's desire to combat youth smoking — is a highly relevant to this matter. Moreover, Joint Defendants have argued that discussions that "reflect on the adequacy, merit and effectiveness of the requirements contained within the proposed legislation or existing laws" are at issue in this case. Mot. App. B at 16. Finally, the document is not personal in nature, therefore the disclosure of this document is not likely to curtail future candid agency discussions.

70. PRA300-0119-0124 [CD 439]

Plaintiff explains that "[p]ages 119 and 124, which deal with the federal tobacco lawsuit and funding of that lawsuit, have been withdrawn from the privilege log and placed on the non-responsive log. Pages 121 and 123 were released to Joint Defendants." Locke Decl. at 26. Plaintiff continues to claim the deliberative process privilege for pages 0120 and 0122, which are (a) a June 19, 2001 email from Frank J. Seidl, III to Barry T. Clendenin "attaching five tobacco-related documents (only three of which are part of this document, including page 121), to assist Mr. Clendenin in preparing for a meeting that day; and (b) table entitled `Possible Uses of Tobacco Legislation Receipts,' an internal May 1998 OMB proposal for Administration spending of receipts from tobacco legislation." Id.

The Special Master recommends that the Court overrule the privilege claim for page 0120, as it is a non-substantive email listing attached documents. The Special Master recommends that the Court sustain the privilege claim for page 0122, which contains proposed uses for tobacco revenue, and is deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants can show need for this page as their assertions of need for discussions pertaining to uses for tobacco revenues are that such deliberations 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 have shown need sufficient to overcome Plaintiff's privilege interest.

c. Documents Relating to Possible Federal Recoupment of Medicaid Funds

Mr. Locke explains that, while the Clinton Administration was reviewing actual and proposed settlements and legislation, staff addressed issues including "(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 26-27.

Mr. Locke explains that the Administration proposed to waive any recoupment rights "in exchange for commitments by the states to use receipts from the tobacco settlement to fund programs which reduced youth smoking, promoted public health, or advanced other shared priorities." Id. at 27. He notes that this proposal was superseded by the FY 1999 Emergency Supplemental Appropriations Act, which barred the federal government from recouping the tobacco payments. Id. Mr. Locke explains that OMB's role in the deliberations 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 exercise that right)." Id.

Joint Defendants claim need for documents addressing recoupment. They assert that discussions regarding whether the federal government should seek recoupment from the states are relevant to their affirmative defenses of unclean hands, in pari delicto, and equitable estoppel. Mot. App. B at 19.

Joint Defendants also challenge Plaintiff's motivations behind President Clinton's signing of the Emergency Supplemental Appropriations Act, asserting that "Plaintiff had a significant opportunity to strike at the very heart of underage smoking (i.e., the states' lack of enforcement and indifference to underage smoking), by conditioning waiver of recoupment on specific and concrete enforcement efforts by the states. The Challenged Documents in this group may well 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." Mot. App. B at 21. Additionally, Joint Defendants contend that "the internal discussions leading up to President Clinton's decision to sign the Emergency Supplemental Appropriations Act 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. at 22. They claim that "[t]his reflected a significant opportunity for Plaintiff 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.

1. PRA078-0024-0026 [CD 33]

This document is an email string with five emails from October 1-7, 1998 discussing the Administration position on recoupment: (a) October 1, 1998, from Jerold R. Mande to Bruce N. Reed, Elena Kagan, Cynthia A. Rice, Christopher Jennings, Joshua Gotbaum, and David Beier, Chief Domestic Policy Advisor for the Vice President, OVP, EOP, "relaying concerns expressed by Sen. Conrad concerning a possible legislative recoupment proposal and asking for the White House position, with a request by Mr. Mande as to how to respond;" (b) October 1, 1998, from Mr. Gotbaum to Mr. Reed, Ms. Kagan, Ms. Rice, and Cynthia Dailard, asking what position OMB should take on this issue; (c) October 6, 1998, from Ms. Rice to Mr. Gotbaum, Daniel N. Mendelson and Victoria A. Wachino, relaying DPC talking points prepared for Erskine Bowles on this issue; (d) October 6, 1998, from Mr. Gotbaum to Ms. Rice, with copies to Mickey Ibarra, Assistant to the President and Director of Intergovernmental Affairs, WHO, EOP; Frederick J. DuVal; and Ms. Kagan, relaying a conversation that OMB had with Del. Gov. Carper, and (e) October 7, 1998 from Mr. Ibarra to William H. White, Jr. forwarding (a)-(d). Reed Decl. at 29; see also 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 claims for page 0026, as it is blank. The Special Master recommends that the Court sustain the presidential communications privilege for pages 0024-0025, as it contains communications solicited and apparently received by the President's Chief of Staff to discuss the recoupment issue in formulating executive policy. The Special Master is not persuaded that information pertaining to the Administration's position on the recoupment issue is not available to Joint Defendants with due diligence from other sources.²⁷

27 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

2. PRA078-0055-0055 [CD 41]

This document is an October 6, 1998 email from Bruce N. Reed to Cynthia Dailard, Laura Emmett, Cynthia A. Rice, and Elena Kagan, "discussing what language to put into a memorandum to Erskine Bowles, Chief of Staff, WHO, EOP, concerning the [sic] what the Administration's policy should be concerning legislative proposals on tobacco recoupment." Reed Decl. at 30; see also Gonzales Decl. Ex. A at 16. Plaintiff claims the deliberative process and presidential communications privilege.

Similar to Challenged Document 33, these communications appear to have been solicited and received by the President's Chief of Staff with regard to the Administration's position on recoupment, and therefore the email is protected by the presidential communications privilege. Also similar to Challenged Document 33, the Special Master is not persuaded that similar information is not available to Joint Defendants with due diligence from other sources; thus Joint Defendants are not able to overcome the presumption afforded by the presidential communications privilege.²⁸

28 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

3. PRA078-0093-0100 [CD 52]

This document consists of two very brief October 7, 1998 emails. The first is from Cynthia A. Rice to Bruce N. Reed, Elena Kagan, and Laura Emmett, with copies to Christopher Jennings, Jeanne Lambrew and Cynthia Dailard; and the second is from Ms. Emmett to Ms. Rice, "forwarding an October 7, 1998 `Note to Bruce and Elena' from Ms. Rice and Ms. Dailard, with copies to Mr. Jennings and Ms. Lambrew, that attaches and discusses three different versions of legislative language that could be used to mandate certain state uses of tobacco settlement funds in return for the United States waiving its recoupment rights. The cover memorandum ("note") describes the authors' recommendations as to what provisions should be in any legislation on this subject." Reed Decl. at 30; see also 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 claims for page 0093, which contains only non-deliberative, ministerial communications. The Special Master recommends that the Court sustain the claim of presidential communications privilege for pages 0094-0100, as the proposals for state spending of tobacco money appear to have been solicited and received by high-level presidential advisors (Bruce Reed and Elena Kagan) in the course of advising the President on the issue of REDACTED REDACTED REDACTED. These pages are therefore presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that similar information regarding the Administration's efforts to require the states to spend settlement money on tobacco control programs is not available from other sources with due diligence.²⁹

29 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

4. PRA078-0529-0533 [CD 69]

This document consists of a February 28, 1999 email from Cynthia A. Rice to Nicole R. Rabner, Associate Director for Domestic Policy, DPC; Devorah R. Adler; Jeanne Lambrew; Thomas I. Freedman; Sarah A. Bianchi; Christopher Jennings; and J. Eric Gould, "transmitting and discussing a draft tobacco recoupment proposal. The author seeks input and suggestions from the recipients regarding the draft tobacco recoupment proposal and discusses the manner in which portions of the proposal may eventually be communicated to Congress." Reed Decl. at 31; see also Gonzales Decl. Ex. A at 17. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. Here, Ms. Rice, a high-level Presidential advisor, solicited the assistance of others within the Executive Office of the President in order to advise the President with respect to providing technical assistance with a bill to be introduced by Senator Conrad. The Special Master does not believe that Joint Defendants have shown that similar information regarding the Administration's position on recoupment is not available to them through other sources with due diligence.³⁰

30 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

5. PRA078-1132-1132 [CD 120]

"This document consists of two emails discussing strategy for moving forward on the Administration's goals regarding tobacco recoupment." Reed Decl. at 31; see also Gonzales Decl. Ex. A at 17. The first is dated March 9, 1999, and is from William H. White, Jr. to Cynthia A. Rice, with copies to Frederick J. DuVal and Mickey Ibarra, "with Mr. White's opinion about the positions of various groups on the issue of recoupment and also recommending a particular strategy to develop support for the Administration's position." Id. In the second email, Mr. White forwards the first to J. Eric Gould. Plaintiff claims the deliberative process privilege.

The Special Master agrees that the email is protected by the deliberative process privilege, as it relays discussions regarding a strategy for setting up further consideration of recoupment: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACT" The Special Master does not believe that discussions regarding strategy for gathering support for the Administration's position are sufficiently relevant to this matter to justify overcoming Plaintiff's privilege interest.

6. PRA078-1133-1134 [CD 121]

This document consists of two April 30, 1999 emails concerning recoupment. The first is from William H. White, Jr. to Christopher Jennings, Cynthia A. Rice, and J. Eric Gould, with copies to Frederick J. DuVal and Mickey Ibarra, "characterizing a conversation he had with a representative of the National Conference of State Legislatures, suggesting a call to be made by the President, and attaching a weekly report to the President item concerning recoupment." Reed Decl. at 31;see also Gonzales Decl. Ex. A at 17. The second is from Ms. Rice to Mr. White, Mr. DuVal, Mr. Jennings, Mr. Gould, and Mr. Ibarra, "responding to Mr. White's suggestions concerning strategy and providing her own suggestions as to strategy concerning recoupment." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. White provides an update on discussions that he had with a representative from the National Conference on State Legislatures regarding the recoupment issue, and asking Ms. Rice how to proceed as far as involving the President in future discussions. Ms. Rice provides a very candid response: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master believes that these internal agency discussions are both deliberative and predecisional, and that Joint Defendants have not shown sufficient need for these communications as disclosure of such candid and critical discussions would serve to chill similar agency discussions in the future.

7. PRA078-1142-1142 [CD 122]

This document is a January 28, 1999 email from Sally Katzen to Lynn G. Cutler, William H. White, Jr., Frederick J. DuVal, and Mickey Ibarra, "discussing what the Administration position should be on tobacco regulation in the context of the recoupment issue, as well as strategy concerning that issue." Reed Decl. at 32; see also Gonzales Decl. Ex. A at 17-18. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim. Ms. Katzen, as Deputy Assistant to the President for Economic Policy and Deputy Director of the National Economic Council, qualifies as an immediate adviser to the President, and the communications appear to have been made "in the course of preparing advice for the President." In re Sealed Case, 121 F.3d at 752. For example, Ms. Katzen notes that " 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 communications protected by the presidential communications privilege. While the recoupment issue is highly relevant at trial, Joint Defendants must show that "the evidence sought [is] directly relevant to issues that are expected to be central to the trial" and also "detail [the] efforts [made to gather this information from other sources] and explain why evidence covered by the presidential privilege is still needed."In re Sealed Case, 121 F.3d at 754-55. The Special Master does not believe that Joint Defendants have made the requisite showing.³¹

31 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

8. PRA078-1209-1209 [CD 133]

This document is a May 5, 1999 email from Cynthia A. Rice to Devorah R. Adler, Christopher Jennings, Elena Kagan, Jeanne Lambrew, Laura Emmett, Bruce N. Reed, and J. Eric Gould, forwarding a suggestion from Daniel N. Mendelson "with respect to an approach/strategy concerning the recoupment amendment by Sen. Hutchison and stating the procedure by which Mr. Mendelson will seek review of his idea. Ms. Rice offers her opinion with respect to this suggestion and solicits that of the addressees." Reed Decl. at 32; see also Gonzales Decl. Ex. A at 18. 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 the email was drafted by a high-level presidential advisor (Ms. Rice), soliciting and receiving information on proposals for the recoupment issue, in order to advise the President regarding Administrative policymaking. In re Sealed Case, 121 F.3d at 752. The Special Master does not believe that Joint Defendants can show need for this document. Although the Special Master believes that the recoupment issue is highly relevant, the Special Master does not believe that Joint Defendants have shown that this information is "directly relevant to issues that are expected to be central to the trial." Id. at 754.³²

32 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

9. PRA078-1211-1211 [CD 134]

This document consists of three brief emails concerning recoupment. The first is dated December 2, 1998, and is from William H. White, Jr. "to a group of White House personnel requesting a meeting to discuss strategy concerning recoupment and suggesting his goals concerning such strategy." Reed Decl. at 32; see also Gonzales Decl. Ex. A at 18. The second is dated December 2, 1998 and is from Cynthia A. Rice to Mr. White, with copies to Jeanne Lambrew, Christopher Jennings, Devorah R. Adler, and Teresa M. Jones, Policy Assistant, DPC, responding to the first; and the third is a December 3, 1998 email from Ms. Jones to Mr. White, responding to the first two emails. Id. at 32-33. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the deliberative process privilege, as it contains internal discussions regarding whether the Administration could " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDAC" The Special Master further believes that, notwithstanding Plaintiff's concerns regarding the potential chilling effect, Joint Defendants' need for information regarding recoupment and negotiations with the states on this issue is sufficiently relevant to this matter to justify disclosure of information pertaining to deliberations as to how to handle the recoupment issue.

10. PRA078-1212-1213 [CD 135]

This document consists of three emails discussing recoupment. The first is dated April 29, 1999 and is from Jeffrey A. Farkas to Joshua Gotbaum; Daniel N. Mendelson; Gina C. Mooers, Executive Assistant, Health/Personnel, OMB; and Jennifer M. Forshey, "analyzing and discussing how to apply a Congressional Budget Office assumption with respect to possible recoupment recoveries." Reed Decl. at 33;see also Gonzales Decl. Ex. A at 18. The second is dated April 29, 1999 and is from Mr. Mendelson to Christopher Jennings, Jeanne Lambrew, Cynthia A. Rice, and Devorah R. Adler, "with his characterization of Mr. Farkas' analysis;" and the third is dated May 3, 1999 and is from Ms. Rice to Martha C. Foley, "providing her analysis and interpretation of the CBO analysis and its effect on Sen. Hutchison's bill." Id. Plaintiff claims the deliberative process privilege.

The Special Master does not believe that the document qualifies for the deliberative process privilege. The document discusses REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " and contains Ms. Rice's opinion that "REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." However, the participants appear to simply comment on this, and there does not appear to be a policy decision to be made.

11. PRA078-1235-1235 [CD 137]

"This document consists of two emails discussing the timing of a bill signing by the President and matters that he might discuss at a signing ceremony." Reed Decl. at 33; see also Gonzales Decl. at 19. The first is dated April 22, 1999 and is from Mindy E. Myers to Janelle E. Erickson, Legislative Assistant, Legislative Affairs, WHO, EOP, with copies to Janet Murguia, Deputy Assistant to the President and Deputy Director of Legislative Affairs, WHO, EOP; Tracey E. Thornton, Deputy Assistant to the President For Legislative Affairs (Senate), Legislative Affairs, WHO, EOP; and Caroline R. Fredrickson, inquiring as to these two matters.Id. The second is dated April 23, 1999, and is from Ms. Myers to Ms. Fredrickson; Marty J. Hoffman, Staff Assistant, Legislative Affairs, WHO, EOP; Matthew J. Bianco, Legislative Assistant, Legislative Affairs, WHO, EOP; and Ms. Erickson, "discussing the planning for the signing ceremony and requesting information as to scheduling and availability of certain persons." 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 that this information was solicited and received by high-level presidential advisors in the course of their duties of advising the President. The Special Master further recommends that the Court overrule the deliberative process privilege claim as the information in this email addresses administrative scheduling matters and editorial changes to a document, and does not contain or relate to internal agency deliberations.

12. PRA078-1236-1237 [CD 138]

This document consists of two March 12, 1999 emails discussing an HHS draft letter on tobacco recoupment. The first is from Joshua Gotbaum to Cynthia A. Rice, with copies to Richard J. Turman, William G. White, Daniel N. Mendelson, and Jennifer M. Forshey, suggesting two edits to the proposed letter. The second is from Ms. Rice to Caroline R. Fredrickson, Mr. Gotbaum, Ms. Schroeder, Mr. White, Mr. Turman, and Mr. Mendelson, commenting on the first edit, suggesting a further change to the second edit, and offering a third proposed change to the letter. Reed Decl. at 34; see also Gonzales Decl. Ex. A at 19. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as the emails reflect the give and take of agency deliberations: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master further believes that Joint Defendants cannot show need for this document, which contains changes to be made to a proposed letter, as Joint Defendants would have access to any final HHS letter.

13. PRA078-1964-1965 [CD 175]

"This document is four emails transmitting and discussing an attached draft paper addressing a recoupment legislative proposal." Reed Decl. ar 34; see also Gonzales Decl. Ex. A at 19. The first is dated March 3, 1999 and is from Joshua Gotbaum to Cynthia A. Rice, discussing Mr. Gotbaum's suggested changes to the attached paper regarding a recoupment legislative proposal. The second is dated March 4, 1999 and is from Ms. Rice to Christopher Jennings, Jeanne Lambrew, and Devorah R. Adler, "forwarding Mr. Gotbaum's suggested changes and requesting responses to these changes." The third is also dated March 4, and is from Mr. Jennings to Sarah A. Bianchi, forwarding Mr. Gotbaum's suggested changes and Ms. Rice's request for a response to these changes. The final is dated December 10, 1999 and is from Ms. Bianchi to Elizabeth Baylor, Research Associate, OVP, EOP, forwarding Mr. Gotbaum's suggested changes and Ms. Rice's request for a response to these changes. Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the deliberative process privilege as it contains internal discussions regarding a proposal for legislation that would extinguish the federal claim. The Special Master further believes that Joint Defendants' need for information relating to the legislative proposal to relinquish any federal claim in return for certain actions by the states is strong as this issue is relevant to this case. Moreover, these emails and draft document are not particularly personal in nature; the Special Master therefore believes that the danger of future chill to agency deliberations is minimal. The Special Master therefore recommends that the Court order Plaintiff to produce this document to Joint Defendants.

14. PRA078-2673-2675 [CD 211]

"This document consists of three emails that transmit and discuss draft background statement on recoupment legislation proposal." Reed Decl. at 35; see also Gonzales Decl. at 19-20. The first is dated March 3, 1999 and is from Joshua Gotbaum to Cynthia A. Rice, with copies to Richard J. Turman, William G. White, Frank J. Seidl, III, and Jennifer M. Forshey, "that provides suggestions and comments on the proposed changes to the attached draft recoupment legislative proposal discussing tobacco prevention, tobacco farmers, public health, anti-drug efforts, and child care." Id. The second is dated March 4, 1999, and is from Ms. Rice to Christopher Jennings, Jeanne Lambrew, and Devorah R. Adler, "that forwards the email described above and request[s] a response to proposed changes to the attached draft recoupment legislative proposal." Id. The third is also dated March 4, and is from Mr. Jennings to Sarah A. Bianchi, forwarding the other two emails. Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the deliberative process privilege, as it contains deliberative emails attaching the same recoupment legislative proposal attached to the emails discussed in Challenged Document 175, supra. The Special Master further recommends that the Court find that Joint Defendants' need for this information outweighs Plaintiff's privilege claim, consistent with the reasoning and recommendation set forth with respect to Challenged Document 175.

15. PRA171-0241-0241 [CD 248]

This document is an October 13, 1998 email from Christopher Jennings to Sarah A. Bianchi forwarding an email of the same date from Frederick J. DuVal to Cynthia A. Rice, Mr. Jennings, and Elena Kagan, with a copy to Mickey Ibarra, "suggesting strategy for the Administration on the tobacco recoupment issue." Reed Decl. at 35; see also Gonzales Decl. Ex. A at 20. Plaintiff claims the deliberative process privilege.

This document qualifies for the deliberative process privilege. The email states, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED" It therefore contains Mr. Jennings' personal opinions and concerns regarding tobacco recoupment negotiations.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege claim, as the document is very candid and personal, and disclosure could adversely effect future open and honest agency communications. Moreover, Joint Defendants have access to other information on recoupment, such as legislative proposals, that the Special Master has recommended be released.

16. PRA171-0288-0288 [CD 254]

This document is a September 22, 1998 email from Daniel N. Mendelson to Cynthia A. Rice, with copies to Jeanne Lambrew, Richard J. Turman, Cynthia Dailard, Christopher Jennings and Joshua Gotbaum, "offering his views concerning a proposed alternative to recouping tobacco payments received by states as Medicaid overpayments." Locke Decl. at 27-28. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. Mr. Mendelson provides his views on a proposal: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The email therefore is both deliberative and predecisional.

The Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. While the email does contain Mr. Mendelson's personal opinion, it also is directly related to Joint Defendants' relevance arguments regarding Plaintiff's efforts to require the states to enforce tobacco control laws and to use the recoupment issue as a tool to do so. Given the relevance, and the unavailability of candid discussions among agency policymakers from other sources, the Special Master believes that, on balance, Joint Defendants' need outweighs Plaintiff's privilege interest.

17. PRA171-0785-0785 [CD 280]

This document is a July 7, 1998 email from Bruce N. Reed to Jerold R. Mande "with a recommendation/suggestion as to how the Administration should proceed with respect to the recoupment issue." Reed Decl. at 35; see also Gonzales Decl. at 20. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master does not believe that the presidential communications privilege applies. While Mr. Reed notes in his email that a specific proposed course of action is " REDACTED," he does not appear to be soliciting and receiving information to enable him to advise the President, and the fact that the President is mentioned in the email is not sufficient to bring the document within the privilege. Rather, Mr. Reed appears to be participating in the general deliberations regarding the recoupment issue, and the email does qualify for the deliberative process privilege.

For the reasons set forth above, the Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. While it contains Mr. Reed's candid and personal opinion, it also is directly relevant to Joint Defendants' need arguments regarding Plaintiff's efforts to require the states to enforce tobacco control laws and to use the recoupment issue as a tool to do so. Given the relevance, and the unavailability of candid discussions among agency policymakers from other sources, the Special Master believes that, on balance, Joint Defendants' need outweighs Plaintiff's privilege interest.

18. PRA171-1699-1701 [CD 321]

This document consists of two February 4, 1999 emails discussing recoupment. Reed Decl. at 36; see also Gonzales Decl. at 20. The first is from Frederick J. DuVal to Cynthia A. Rice, with a copy to William H. White, Jr., "requesting a report on the tobacco recoupment meeting." Id. The second is from Ms. Rice to Mr. DuVal, with copies to J. Eric Gould and Mr. White, "reporting on the meeting, including a statement of administration strategy for dealing with proposed recoupment legislation." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 1700-1701, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule the presidential communications privilege claim for page 1699, as it does not appear that Ms. Rice solicited and received information intended to assist her in her duties of advising the President; rather it appears that Ms. Rice is providing a summary of a meeting for Mr. DuVal, and updating him on ongoing activities. The Special Master recognizes the cautions of our Circuit Court 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." In re Sealed Case, 121 F.3d at 752. Moreover, the Circuit Court has recently re-emphasized 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.'" Judicial Watch, 356 F.3d at 1114 The Special Master also does not believe that page 1699 qualifies for the deliberative process privilege, as it appears to convey decisions made and actions being taken, and it is not predecisional in nature.

19. PRA171-1780-1780 [CD 326]

This document is a March 3, 1999 email from Caroline R. Fredrickson to Matthew J. Bianco "reporting on and analyzing developments in the Senate and conversations with senators concerning recoupment." Reed Decl. at 36; see also Gonzales Decl. Ex. A at 20-21. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Here, Ms. Frederickson provides the viewpoints of different Senators on the recoupment issue, as well as the plans for action of those Senators. The document is not deliberative in nature in that it does not contain recommendations or proposals, nor does it seek advice, guidance or feedback. Rather, it simply provides information.

20. PRA201-0133-0136 [CD 338]

This document consists of three emails dated November 3, 1998. The first is from Daniel N. Mendelson to Joshua Gotbaum and Victoria A. Wachino "proposing additional language concerning developing an Administration policy on recoupment to be added to a draft tobacco memo for Jacob Lew, Director, OMB." Locke Decl. at 28. In the second email, Ms. Wachino forwards the first to William G. White, and, in the third email, Mr. White provides additional suggested language to Ms. Wachino for the draft statement transmitted in the first two emails. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0133-0134, as they contain only document identification numbers and no substantive information. The Special Master believes that pages 0135-0136 qualify for the privilege, as they contain two proposals for language to include in a memo to the Director of the OMB, and are therefore deliberative and predecisional in nature.

The Special Master does not believe that Joint Defendants can claim sufficient need for documents pertaining to proposed language for an internal memorandum to the OMB Director, as the potential chilling effect of these communications outweighs any utility these particular emails have to Joint Defendants.

21. PRA203-0015-0015 [CD 373]

This document consists of two February 3, 1999 emails between J. Eric Gould and Patrick G. Locke "concerning possible options to offset the cost to the Federal Government of waiving recoupment and who within OMB should be involved in the consideration of this matter." Locke Decl. at 28. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for these emails, as they reflect the give and take of agency deliberations (" REDACTED REDACTED REDACTED ") and the process by which the OMB formulates decisions (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED "). The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's interest as the communications here address the manner in which the agency formulates its policy, which is the primary concern of the deliberative process privilege.

22. PRA203-0045-0046 [CD 375]

"This document is four February 22, 1999 emails concerning developing a list of programs to be funded by states in exchange for the Federal government waiving its recoupment rights, as proposed in the FY 2000 Budget." Locke Decl. at 28. The first is from Daniel N. Mendelson "to a large group of OMB personnel, expressing his concern about the current state of the list of programs and options to be presented to Jacob Lew, Director, OMB." Id. The second is from Barry White, forwarding the first to Jack A. Smalligan and Jennifer Friedman, Program Examiner, Income Maintenance Branch, OMB. The third is from Ms. Friedman to Jennifer M. Forshey, William G. White, and Frank J. Seidl, III, "asking for OMB Health Division guidance on how items were selected for the list of programs so that her group could work on developing the list;" and the fourth is from Mr. White to Mark E. Miller, forwarding the previous three emails. Id. at 28-29. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document reveals the candid and personal opinions of agency employees offered in the course of proposing agency policy. Mr. Mendelson opines: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Ms. Friedman also asks the recipients of her email to " REDACTED REDACTED REDACTED."

The Special Master does not believe that Joint Defendants have shown need for this document. Although the recoupment issue in general is highly relevant, here agency employees express personal opinions on discrete issues arising in the recoupment discussion, as well as the process by which the agency makes decisions. The Special Master therefore believes that the potential chilling effect outweighs any need Joint Defendants may have for this email communication.

23. PRA207-0531-0536 [CD 387]

This document consists of two January 27, 1999 emails. The first is from William G. White (jointly written with Cynthia M. Smith, Program Examiner, Health/Personnel, OMB) to Daniel N. Mendelson and Gina C. Mooers, "with copies to a large group of OMB personnel, discussing three issues relating to certain CBO work with respect to Medicare and Medicaid, including an analysis of CBO baseline assumptions with respect to tobacco recoupment, along with the Health Division's `observations and analysis.'" Locke Decl. at 29. The second is from Richard J. Turman to Melany Nakagiri; Frank J. Seidl, III; Jennifer M. Forshey; Barbara A. Menard, Program Examiner, Health/Personnel, OMB; and Marc Garufi, forwarding the first. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0531-0532, as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0533-0536, which contains staff analysis of the CBO analysis of tobacco recoupment.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. Here, the document contains an examination of an analysis performed outside of the executive branch, to which Joint Defendants have access; it provides limited insight into the Administration's position on the issue, which is at the heart of Joint Defendants' need argument. Therefore, Plaintiff's interest in its privilege outweighs Joint Defendants' claimed need.

24. PRA207-0650-0653 [CD 388]

This document consist of two February 11, 1999 emails. The first is from Richard J. Turman "to a large group of OMB personnel, relating the results of a meeting between HHS, DPC, and OMB officials concerning what Donna Shalala, Secretary, HHS, could say about recoupment and the related FY 2000 Budget proposal at possible Congressional hearings, including a discussion of a new approach to recoupment and differing views as to what could be said." Locke Decl. at 29. In the second, Mr. Turman forwards the first to Robert J. Pellicci, Janet R. Forsgren, and Barry T. Clendenin. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0650-0651, as these pages contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0652-0653, as these pages memorialize a discussion among members of OMB and the DPC regarding the recoupment issue and possible portrayal of the Administration's position.

The Special Master further believes that Joint Defendants need does not outweigh Plaintiff's privilege claim. Here, Mr. Turman cautions that the information in the email should be forwarded carefully, and the actual discussion reflects the manner in which the Administration made policy decisions, which is at the heart of the privilege. For example, Mr. Turman notes that " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

25. PRA207-0654-0659 [CD 389]

"This document is a February 11, 1999 email string concerning possible programs to be included in tobacco recoupment legislation." Locke Decl. at 30. Mr. Locke describes the substantive emails as follows: (a) from Ingrid M. Schroeder, Legislative Analyst, Economics, Science, General Government and Finance, OMB, to Richard J. Turman, with a copy to Victoria A. Wachino "providing a "starting point" (preparatory to discussions with the White House) list of programs to be included in recoupment legislation and soliciting further assistance in preparing the list;" (b) from Ms. Schroeder to Mr. Turman, with copies to Barry White; David J. Haun, Chief, Justice Branch, General Government and Finance, OMB; and Ms. Wachino providing more items to be included on the list; (c) from Mark E. Miller to Anne E. Tumlinson; Jeffrey A. Farkas; Katherine Kirchgraber, Program Examiner; William G. White; Lillian Spuria, Program Examiner, Health/Personnel, OMB; and Cynthia M. Smith, asking whether an inconsistency should be noted; and (d) Ms. Tumlinson to Mr. Miller, with copies to Mr. Farkas, Ms. Kirchgraber, Mr. White, Ms. Spuria, and Ms. Smith, responding to (c) and offering her opinion as to what to do with respect to putting a particular item on the list. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the deliberative process privilege claim for pages 0654-0655, as these pages contain document identification numbers and no substantive information. The Special Master believes that pages 0656-0659 qualify for the privilege, as these pages contain suggestions and proposals for the tobacco menu to be used as part of the recoupment legislation.

The Special Master does not believe that Joint Defendants' need outweighs Plaintiff's privilege claim. Here, the discussions are candid in nature, very predecisional, and reflect the process by which the Administration formulates decisions. The Special Master believes that Plaintiff's interest in the quality of its decisionmaking process outweighs Joint Defendants' claimed need.

26. PRA215-0024-0028 [CD 405]

This document consists of three emails. The first is dated May 9, 1999, and is from Joshua Gotbaum to Cynthia A. Rice and Daniel N. Mendelson, with copies to Richard J. Turman and Charles E. Kieffer, "offering suggestions for changes to be proposed by the Administration to a proposed tobacco amendment from Rep. Obey regarding use of tobacco settlement funds and seeking guidance from Mr. Mendelson as to whether one of the provisions in the proposed amendment is proper." Locke Decl. at 30. The second is dated May 10, 1999 and is "from Ms. Rice to Mr. Gotbaum, with copies to Mr. Mendelson, Mr. Turman, Mr. Kieffer, and three White House personnel, setting forth her version of comments on and edits to the Rep. Obey proposed amendment and soliciting further comments and review from some of the White House addressees."Id. In the third email, Mr. Turman forwards the prior two to a group of OMB Health Division personnel. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0024-0025, as these pages contain only document identification numbers and no substantive information, and for page 0026, which contains only an email forwarding list. The Special Master believes that pages 0027-0028 qualify for the privilege. Here, Ms. Rice provides her opinion on the proposed tobacco amendment, and proposes a new option.

The Special Master believes that Joint Defendants' need for pages 0027-0028 outweighs Plaintiff's privilege interest in that these pages discuss the potential effectiveness of the recoupment proposal, and are relevant to Joint Defendants' claim that the government recognized the importance of effective enforcement, but failed to take effective action in light of this realization. Moreover, such internal deliberations and analysis are not available to Joint Defendants from other sources. Therefore, the Special Master believes that the potential chilling effect is outweighed by Joint Defendants' need.

27. PRA215-0034-0038 [CD 406]

This document consists of two emails. The first is dated May 4, 1999, and is from Jeffrey A. Farkas, (jointly drafted with Frank J. Seidl, III and Anne E. Tumlinson, as well) to Joshua Gotbaum "and a large group of OMB personnel, providing OMB's detailed analysis of and comments on and concerns about the proposed Rep. Obey recoupment legislation intended to substitute for Sen. Hutchison's recoupment amendment." Locke Decl. at 31. The second is dated May 5, 1999, and is from Ms. Tumlinson to Devorah R. Adler, forwarding, and very briefly commenting on the first.Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0034-0035, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0036-0038, which contain a description of the Obey recoupment proposal, solicits comments, and raises concerns.

The Special Master believes that Joint Defendants' need for pages 0036-0038 outweighs Plaintiff's privilege interest in that these pages discuss the potential effectiveness of the recoupment proposal, and are relevant to Joint Defendants claim that the government recognized the importance of effective enforcement, but failed to take effective action in light of this realization. Moreover, such internal deliberations and analysis are not available to Joint Defendants from other sources. Therefore, the Special Master believes that the potential chilling effect is outweighed by Joint Defendants' need.

28. PRA215-0044-0048 [CD 407]

This document is a duplicate of the first email described in Challenged Document #406, along with a May 4, 1999 email from Richard J. Turman to Frank J. Seidl, III, thanking him for his involvement in drafting the email. Locke Decl. at 31. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0044-0045, as these pages contain only document identification numbers and no substantive information. For the reasons set forth immediately supra with respect to pages 0036-0038 of Challenged Document 406, the Special Master believes that pages 0046-0048 of this document qualify for the privilege, but that Joint Defendants' need outweighs Plaintiff's privilege interest.

29. PRA215-0052-0054 [CD 408]

This document is a duplicate of the earliest-in-time email described in Challenged Document #405, with an additional email from Daniel N. Mendelson, forwarding the email from Joshua Gotbaum to William G. White, Richard J. Turman, and Jeffrey A. Farkas, and requesting that Mr. Farkas call Mr. Mendelson concerning this matter. Locke Decl. at 31. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0052-0053, as these pages contain only document identification numbers and no substantive information. The Special Master further believes that, consistent with the recommendation for pages 0027-0028 of Challenged Document 405, that page 0054 qualifies for the privilege, but that Joint Defendants' need outweighs Plaintiff's privilege interest.

30. PRA215-0055-0060 [CD 409]

"This document is an email string discussing comments to be made and suggested changes to be offered by the Administration concerning the Rep. Obey recoupment legislative proposal." Locke Decl. at 32. Mr. Locke describes the emails as follows: (a) May 10, 1999 from Cynthia A. Rice to Joshua Gotbaum "setting forth the comments and suggested changes;" (b) May 10, 1999 from Mr. Gotbaum to Ms. Rice and Daniel N. Mendelson, with copies to Richard J. Turman and Mark E. Miller, "stating his agreement with the proposed comments;" (c) May 10, 1999 from Mr. Mendelson to Mr. Gotbaum, with copies to Ms. Rice, Mr. Turman, and Mr. Miller, "disagreeing with one of the comments and stating his reasons therefor;" (d) May 11, 1999 from Mr. Miller to Robert Donnelly, Program Examiner, Health/Personnel, OMB; Jeffrey A. Farkas; and Katherine Kirchgraber, with copies to Anne E. Tumlinson and Caroline B. Davis, Program Examiner, Health/Personnel, OMB, "asking them to meet with him to discuss one of the proposed comments;" and (e) "Mr. Farkas to Mr. Miller, with copies to Ms. Davis, Ms. Kirchgraber, Ms. Tumlinson, and Mr. Donnelly, agreeing to meet and reiterating certain of the analysis on this matter provided to Mr. Miller the previous day." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0055-0056, as these pages contain only document identification numbers and no substantive information. The Special Master believes that pages 0057-0060 qualify for the privilege as they memorialize the continuing discussions regarding the Obey amendment, and that, as with similar communications, Joint Defendants' need for this information outweighs Plaintiff's privilege interest.

31. PRA215-0071-0076 [CD 410]

"This document is an email string discussing proposed language concerning youth smoking for the President's statement to be issued in connection with signing the 1999 Emergency Supplemental Appropriations Act." Locke Decl. at 32; see also Gonzales Decl. Ex. A at 27. Mr. Locke describes the emails as follows: (a) May 18, 1999 from Victoria A. Wachino to "a large group of OMB personnel, providing proposed language concerning youth smoking and suggesting `possible post-Hutchison amendment responses' (i.e., actions that the Administration and Congress could take);" (b) May 19, 1999 from Cynthia A. Rice to Joshua Gotbaum and Daniel N. Mendelson, "relating instructions from John Podesta, Chief of Staff, White House as to what should be in the statement;" (c) "May 19, 1999 from Mr. Gotbaum to Ms. Rice, with a copy to Ms. Wachino, responding to (b) and noting that a draft statement already has been prepared;" and (d) May 19, 1999 from Ms. Wachino to Mark E. Miller, Richard J. Turman and Jeffrey A. Farkas forwarding the earlier three emails. Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0071-0072 and 0076, as these pages contain only document identification numbers and no substantive information. The Special Master recommends that the Court sustain the presidential communications privilege claim, as the information in this document was solicited and received by immediate presidential advisors in the course of advising the President:" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The document is therefore presumptively privileged, and the Special Master does not believe that Joint Defendants have made a sufficient showing of need to overcome the heightened protection afforded presidential communications.³³

33 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

32. PRA215-0093-0097 [CD 411]

This document is a duplicate of the earlier-in-time email described in Challenged Document #406, along with a May 4, 1999 email from Barry T. Clendenin to Anne E. Tumlinson, Frank J. Seidl, III, and Jeffrey A. Farkas, complimenting them on their work on this project. Locke Decl. at 33. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0093-0094, as these pages contain only document identification numbers and no substantive information. The Special Master further believes that, consistent with the recommendation for the substantive portions of Challenged Document 406, pages 0095-0097 qualify for the deliberative process privilege, but that Joint Defendants' need for this information outweighs Plaintiff's privilege interest.

33. PRA215-0098-0106 [CD 412]

This document is an email string discussing the first-in-time email described in Challenge Document #406 and comments on the Obey amendment received from HHS: (a) May 4, 1999, from Jeffrey A. Farkas (on behalf of Frank J. Seidl, III and Anne E. Tumlinson, as well) to Joshua Gotbaum "and a large group of OMB personnel, providing OMB's detailed analysis of and comments on and concerns about the proposed Rep. Obey recoupment legislation intended to substitute for Sen. Hutchison's recoupment amendment;" (b) May 4, 1999, from Cynthia A. Rice to Mr. Gotbaum, offering comments to (a) on behalf of the DPC; (c) May 4, 1999 from Mr. Gotbaum to a large group of OMB personnel, forwarding (b) and soliciting discussion about the subject; (d) May 4, 1999 from Mark E. Miller "to a large group of OMB personnel, offering comments on behalf of his OMB group concerning the HHS comments;" (e) May 5, 1999 from Katherine Kirchgraber "to Mr. Farkas, asking to be kept up to date on one aspect of what is being discussed;" (f) "May 5, 1999 from Mr. Farkas to Ms. Kirchgraber, agreeing to do so;" (g) May 5, 1999 from Mr. Farkas to Anne E. Tumlinson, forwarding (a)-(f); and (h) May 5, 1999 from Ms. Tumlinson to Mr. Farkas, commenting on (e). Locke Decl. at 33. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0098-0099, which contain only document identification numbers and no substantive information, and for page 0106, which contains only a cc list. The Special Master further recommends that the Court overrule the privilege claim for page 0100, which contains a non-deliberative email exchange among OMB employees. Consistent with the recommendation for the substantive portion of Challenged Document 406, the Special Master believes that pages 0101-0105 qualify for the deliberative process privilege, but that Joint Defendants' need for these discussions outweighs Plaintiff's privilege interest.

34. PRA215-0110-0114 [CD 413]

"This document consists of three May 5, 1999 emails discussing an internal OMB-wide request for comments on objectionable provisions of the 1999 emergency supplemental appropriations bill, with particular reference to the provision on recoupment." Locke Decl. at 33-34. The first is from Ingrid M. Schroeder to Jeffrey A. Farkas, with copies to a large group of OMB personnel, relaying comments from Joshua Gotbaum, "concerning a previously-prepared OMB paper concerning objectionable provisions in the legislation;" the second is from Anne E. Tumlinson to Mr. Farkas, commenting on Mr. Gotbaum's edits; and the third is from Mr. Farkas to Ms. Tumlinson, commenting on a particular edit.Id. at 34. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0110-0111, as these pages contain only document identification numbers and no substantive information, and for page 0114, which contains only a cc list. Pages 0112-0113 do qualify for the deliberative process privilege, as they contain a summary of objectionable provisions to legislation that would prevent recoupment. The Special Master believes that Joint Defendants' need for the portion of the document addressing the legislation (the email from Ms. Schroeder), but not the emails originating from Mr. Farkas and Ms. Tumlinson, outweighs Plaintiff's privilege interest due to the relevance of the recoupment issue. The latter emails contain the candid and personal opinions of agency employees and are of little relevance to Joint Defendants. The Special Master further believes that disclosure of the Farkas/Tumlinson emails could chill future candid discussions.

35. PRA215-0147-0150 [CD 415]

"This document consists of three May 5, 1999 emails discussing BDR 99-43, proposed recoupment legislation." Locke Decl. at 34. The first is the email from Ingrid M. Schroeder in Challenged Document #413; the second is "from Mr. Farkas to Ms. Schroeder responding to a request in her email to check on a particular number;" and in the third Ms. Schroeder forwards the first two emails to Mr. Gotbaum. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0147-0148, which contain only document identification numbers and no substantive information. Consistent with the recommendation for the substantive portions of Challenged Document 413, the Special Master believes that pages 0149-0150 qualify for the deliberative process privilege, but that Joint Defendants' need for these pages outweighs Plaintiff's privilege interest.

36. PRA215-0182-0185 [CD 416]

This document is a duplicate of (a) and (b) in Challenged Document #415. Locke Decl. at 34.

The Special Master recommends that the Court overrule the privilege claim for pages 0182-0183, which contain only document identification numbers and no substantive information. Consistent with the recommendation for the substantive portion of Challenged Document 415, the Special Master believes that pages 0184-0185 qualify for the deliberative process privilege, but that Joint Defendants' need for the information outweighs Plaintiff's privilege interest.

37. PRA215-0186-0189 [CD 417]

This document is a duplicate of the two emails described in Challenged Document #408, and includes a third email dated May 10, 1999 from Jeffrey A. Farkas to Anne E. Tumlinson, Frank J. Seidl, III, Richard J. Turman, William G. White, Caroline B. Davis, Mark E. Miller, and Jennifer M. Forshey, "in which Mr. Farkas forwards the earlier two emails and inserts comments and questions into the text of Mr. Gotbaum's email as his `preliminary response.'" Locke Decl. at 34-35. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0186-0187, which contain only document identification numbers and no substantive information, and for page 0188, which contains only a cc and author/recipient list. The Special Master further recommends that, consistent with the recommendation for the substantive portion of Challenged Document #408, that the Court find that page 0189 qualifies for the privilege claim, but that Joint Defendants' need for the information outweighs Plaintiff's privilege interest.

38. PRA215-0190-0192 [CD 418]

This document is a May 18, 1999 email from Victoria A. Wachino to Cynthia A. Rice and J. Eric Gould "forwarding four options for what to say about tobacco in an enrolled bill memorandum to be sent to the President, along with `potential language' for the President's bill-signing statement for the FY 1999 Emergency Supplemental Appropriations Act." Locke Decl. at 35. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0190-0191, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0192, which proposes language for the President's signing statement, as well as options for describing tobacco in the enrolled bill memorandum, and is therefore deliberative and predecisional in nature. The Special Master further believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest as the communications discuss REDACTED REDACTED REDACTED, which is implicated in Joint Defendants' need arguments, and as these communications are not personal in nature and therefore less likely to chill future agency discussions.

39. PRA215-0210-0213 [CD 419]

This document is a May 13, 1999 email from Daniel N. Mendelson to J. Callahan, Office of the Secretary, HHS, forwarding an email of the same date from Cynthia A. Rice to Joshua Gotbaum and Mr. Mendelson, "reporting on and providing an analysis of what happened in congressional proceedings concerning recoupment legislation. The email includes Ms. Rice's characterization of which senators and congressmen are considered to be the Administration's allies." Locke Decl. at 35.

The Special Master recommends that the Court overrule the privilege claim for pages 0210-0211, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule the privilege claim for pages 0212-0213, which relay the facts of what occurred with the tobacco recoupment legislation in Congress. While the email offers Ms. Rice's opinions and analysis of the proceedings (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."), the discussions do not appear to relate to the creation of policy.

40. PRA219-0535-0543 [CD 424]

This document consists of three emails dated March 16 and 17, 1999. The first is dated March 16, 1999 and is "from Kate P. Donovan, Staff Assistant, Legislative Affairs, OMB, to a large group of White House and EOP personnel that contains a draft Statement of Administration Position concerning S. 544, the Emergency Supplemental Appropriations Act, FY 1999." Locke Decl. at 35. The second is a March 17, 1999 email from Jeffrey M. Smith, Executive Assistant to the Director for Policy and International Affairs, OSTP, EOP, forwarding the first to others within OSTP with guidance about the deadline for responding to OMB; and the third is from David Y. Stevens, OSTP, EOP forwarding (a) and (b) to others within OSTP. Mr. Locke explains that "[m]ost of this document is non-responsive. There is one paragraph in email (a) setting forth the Administration's position with respect to the provision in the bill added by Sen. Hutchison to relinquish recoupment of payments from the tobacco industry to the states." Id. at 35-36.

The Special Master recommends that the Court overrule the privilege claim for pages 0535-0536, which contain only document identification numbers and no substantive information, and for pages 0537 and 0543, which contain only email recipient lists. The Special Master further recommends that the Court sustain the privilege claim for pages 0538-0542, which contain the draft statement of Administration policy regarding the Emergency Supplemental Appropriations Act. As a draft, the document is deliberative and predecisional. The Special Master does believe that Joint Defendants' need for the one paragraph of the draft statement pertaining to tobacco, contained on page 0541, outweighs Plaintiff's privilege claim, as this paragraph voices REDACTED REDACTED REDACTED REDACTED REDACTED , which is an issue that Joint Defendants have demonstrated is very relevant to this matter. Mot. App. B at 21. Moreover, the draft statement with respect to tobacco is not so candid or personal in nature that disclosure of this one paragraph is likely to chill future discussions involving the development of Administration policy.

d. Documents Relating to Youth Smoking

Mr. Locke explains, with respect to this category of documents, 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." Locke Decl. at 36. He further explains that aside from analysis of specific settlements and legislation, segments of the EOP "worked generally to analyze the extent of underage smoking and different ways to combat or reduce such underage smoking."Id. He attests that the purpose of this review 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 any proposed legislation, regulations or other Executive Branch action, 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 youth smoking proposals and what actions the Executive Branch should take to combat youth smoking." Id.

Joint Defendants assert:

Plaintiff alleges that Joint Defendants have violated RICO by allegedly marketing cigarettes to youth while at the same time denying such marketing activities. Plaintiff seeks to have Joint Defendants disgorge $289 billion based upon a population of smokers that allegedly began smoking five cigarettes per day before they were 21 years of age. Plaintiff also seeks to impose injunctive relief that is, in part, designed to reduce the incidence of youth smoking. Consequently, Plaintiff's discussions regarding youth smoking are clearly central to Plaintiff's theory of the case. Indeed, discussions contained within the Challenged Documents may rebut Plaintiff's claims that Joint Defendants' conduct caused or perpetuated youth smoking.

Mot. App. B at 5-6 (citations omitted). Joint Defendants also claim that documents discussing youth smoking issues are relevant to their affirmative equitable defenses, as well as their First Amendment defense. Id. at 6.

Joint Defendants note that a number of documents in this category address youth smoking in the context of the MSA; Joint Defendants assert that these documents are very relevant to "whether Plaintiff can meet its burden of demonstrating that there exists a reasonable likelihood of future misconduct" as the MSA "contains a variety of provisions designed to prevent many of the things that Plaintiff complains of in this case, such as misrepresentations about addiction or causation." Id. at 7.

Joint Defendants claim need for any documents that contain discussions as to why young people begin to smoke, as these discussions relate to Plaintiff's allegations of fraud on the part of Joint Defendants, and Plaintiff's contentions that programs implemented by Joint Defendants as required by the MSA are ineffective. Id. at 7-8.

With respect to the Synar Amendment and the decision by the government to provide funds to states notwithstanding the states' noncompliance with Synar, Joint Defendants assert that, "[t]o the extent these documents contain discussions that reflect the failure of the states to take Synar seriously, or the failure to take necessary steps to enforce youth smoking laws, these Challenged Documents are important evidence that support Joint Defendants' affirmative defenses including laches, waiver and estoppel." Id. at 10. "Likewise, to the extent these Challenged Documents contain discussions that demonstrate Plaintiff 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 non-complying states to nevertheless receive block grant funding, they would also be importance evidence to Joint Defendants." Id.

Additionally, to the extent that the documents assess the impact that tobacco revenues would have on the federal budget, Joint Defendants argue that such discussions are relevant insofar as they demonstrate that the government consciously struck a balance between the public health consequences of smoking and the revenues it received from tobacco taxes. They also assert that "[d]ocuments containing assessments of the impact of cigarette price adjustments on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes, could contradict claims or assumptions made by Plaintiff's experts in this litigation." Id. at 12.

Finally, Joint Defendants assert that "Plaintiff's allegations of youth marketing are central to its case and, therefore, discussions as to the cause of youth smoking, the effectiveness of certain steps to reduce the incidence of youth smoking, and whether Plaintiff has fulfilled its obligations to take steps to reduce the incidence of youth smoking are all at issue." Id.

1. PRA061-1369-1369 [CD 11]

"This document is an undated (but probably 1998) OMB draft outline of youth smoking penalty options, including possible penalty amounts and structures, and what smoking targets to use." Locke Decl. at 36. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document, as Plaintiff has not sufficiently demonstrated that this document was drafted as part of the agency's deliberative process, and as it is unlikely to adversely impact future agency deliberations. 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.").

2. PRA064-0023-0035 [CD 26]

Plaintiff has released pages 0023-0027 of this document and continues to claim the deliberative process privilege for pages 0028-0035, which consist of "questions and answers drafted in August 1996 to prepare the President to respond to potential press questions about the FDA rule designed to reduce youth smoking and educate youth about the health risks of tobacco." Locke Decl. at 37. Mr. Locke explains that "[t]he first page of the document states that these questions and answers are `for internal use only.'" Id.

The Special Master recommends that the Court overrule the privilege claim for pages 0028-0035, as these pages appear to reflect the policy of the Administration, and Plaintiff has not demonstrated that the questions and answers pertain to, or play a role in, actual agency deliberations.

3. PRA066-0468-0469 [CD 28]

Mr. Locke explains that "[t]his document consists of a preliminary analysis of whether the `look back' surcharge in the June 1997 proposed settlement would effectively reduce youth smoking. The analysis was drafted by the Department of Treasury and includes handwritten notes from OMB. The analysis reaches a conclusion about the potential effectiveness of the proposed surcharge and proposes changes to the surcharge that the author believes would make it more effective." Locke Decl. at 37. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. The document examines the "look back" surcharge in the settlement, and asks REDACTED REDACTED REDACTED REDACTED. The legend at the top of the document expressly states that the analysis is "preliminary" and "NOT final." The Special Master further believes that Joint Defendants' need for the document outweighs Plaintiff's privilege interest. Here, the concern of future chill is not compelling, as no author is identified. Moreover, the analysis pertaining to whether youth smoking would actually be reduced as a result of the surcharge is relevant to the claims and defenses here. Mot. Ex. B at 7-8.

4. PRA078 0300-0311 [CD 60]

"This document consists of four emails that relate to upcoming statements that were to be made by the Vice President regarding the anticipated impact of the President's tobacco plan." Brown Decl. at [60]; see also Gonzales Decl. Ex. A at 21. The first is dated March 20, 1998, and is from Jodi R. Sakol, Office of the Communications Director for the Vice President, OVP, EOP, to Lawrence J. Haas, Communications Director for the Vice President, OVP, EOP; the second is also dated March 20, and is from Mr. Haas to Michelle Crisci, Assistant to the Senior Advisor, Chief of Staff, WHO, EOP; Elena Kagan; Cynthia A. Rice; Toby Donenfeld; and Laura Emmett; the third is dated March 21, 1998, and is from Ms. Rice to Mr. Haas; and the fourth is dated March 21, 1998, and is from Ms. Rice to Mr. Donenfeld, Donald H. Gips, and Cynthia Dailard. Id. "The emails distribute as an attachment draft fact sheets and draft questions and answers relating to the upcoming statement by the Vice President, and solicit the recipients' edits and comments on the attachment. The attachment was distributed and discussed by employees in the Office of the Vice President and the Executive Office of the President in connection with their responsibility to gather information and assist the Vice President in developing and articulating the Clinton Administration's position on tobacco issues, a subject on which the Vice President directly advised the President." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0300-0301, as these pages contain non-substantive discussions among agency employees. The remainder of the document contains copies of a statement to be made by Vice President Gore, along with draft questions and answers regarding the statement. The Special Master does not believe that the presidential communications privilege applies, as Plaintiff has not demonstrated that this document reflects communications regarding advice to be given to the President. In re Sealed Case, 121 F.3d at 752. Rather, it reflects a draft speech to be given by the Vice President regarding the President's policies. The Special Master does believe that the deliberative process privilege applies to pages 0302-0311, as these documents are in draft form and do not reflect the policy of the agency. Moreover, as Joint Defendants would have access to any final speeches given by the Vice President, the Special Master does not believe that Joint Defendants have shown need for the preliminary drafts.

5. PRA078-0496-0499 [CD 64]

"This document consists of a string of six April 15, 1999 emails discussing possible suggested amendments to proposed legislation regarding safe and drug-free schools." Reed Decl. at 37; see also Gonzales Decl. Ex. A at 21. They are as follows: (a) Dan Marcus, Senior Counsel, Counsel to the President, WHO, EOP, to Charles Ruff, Counsel to the President, WHO, EOP, and Elena Kagan; (b) Ms. Kagan to Bruce N. Reed, Jonathan H. Schnur, Associate Director for Education Policy, DPC, and Tanya E. Martin, Associate Director for Education and Policy Planning, DPC; (c) Ms. Martin to Ms. Kagan and Mr. Reed, with copies to Mr. Schnur and Cynthia A. Rice; (d) Ms. Kagan to Ms. Martin, with copies to Mr. Reed, Mr. Schnur, and Ms. Rice; (e) Ms. Rice to a group of DPC personnel; and (f) Mr. Schnur to Sarah A. Bianchi.Id. "The discussion of the proposed legislation, which would have re-authorized certain programs administered by the Department of Education, includes the expression of concerns held by certain Executive Branch agencies about the proposed legislation; recommendations for substantive language changes to the proposed legislation; and general analysis of the necessity of the proposed legislation." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0499, which contains only a cc list and no substantive information. The Special Master further recommends that the Court overrule the presidential communications privilege as the document does not appear to have been solicited and received by an immediate presidential advisor in the course of advising the President. Rather, the advisors involved in the communications appear to have been participating in the Administration's general deliberations. Therefore the document qualifies for the deliberative process privilege, as it contains the thoughts and opinions of administration employees provided in the course of the development of policy.

The Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege claim. Here, the document contains the opinions of agency employees relating to effective ways to prevent youth smoking, and critical analysis of anti-smoking proposals. While it contains the candid opinion of Administration employees, and there is the possibility of future chill, the Special Master believes that this issue is particularly important to this litigation and, on balance and in consideration of the other relevant factors of the need analysis, Plaintiff's interest is outweighed by Joint Defendants' need.

6. PRA078-0825-0825 [CD 84]

This document is a February 28, 2000 email from Cynthia A. Rice to Joanne A. Slaney, Special Assistant to the President for Legislative Affairs, WHO, EOP, with copies to Bethany Little, Associate Director for Domestic Policy, DPC; Eugenia Chough; Andy Rotherham, Special Assistant to the President for Domestic Policy, DPC; and J. Eric Gould, forwarding a proposed statement to be made to the Senate on legislation dealing with children and tobacco. Reed Decl. at 37; see also Gonzales Decl. Ex. A at 22. Plaintiff claims the deliberative process and presidential communications privileges. The Special Master believes that the presidential communications privilege applies, as Ms. Rice proposes language to be used by the President in stating the Administration's position, and seeks feedback on this position to enable her to advise the President. The Special Master does not believe that Joint Defendants' need for this information outweighs the protected status afforded by the presidential communications privilege, particularly as they have access to any final statement of policy the President made on this issue.³⁴

34 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

7. PRA078-1012-1013 [CD 107]

This document is a June 30, 1999 email from Cynthia A. Rice to Martha C. Foley, "forwarding as an attachment preliminary estimates as to the potential effectiveness of two options for reducing youth smoking and raising revenue for health-related programs." Reed Decl. at 38; see also Gonzales Decl. Ex. A at 38. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the deliberative process privilege. Here, the document contains" REDACTED REDACTED REDACTED REDACTED." The document is therefore both deliberative and predecisional. The Special Master does believe that Joint Defendants' need for this document outweighs Plaintiff's privilege interest as it addresses proposals to reduce youth smoking and is relevant to the claims and defenses in this matter. Mot. App. B at 7. Moreover, the document is not particularly candid or personal in nature, and it is unlikely that Joint Defendants are able to obtain these preliminary discussions from other sources.

8. PRA078-1172-1172 [CD 126]

"This document is a January 8, 1999 email from Reuben L. Musgrave, Jr., Director, Presidential Letters, Staff Secretary, WHO, EOP, to Daniel W. Burkhardt, Special Assistant to the President and Director of Correspondence and Presidential Messages, Staff Secretary, WHO, EOP, and Delia A. Cohen, Deputy Director, Correspondence, Staff Secretary, WHO, EOP, describing the plan for and status of the creation of form letters addressing various topics, including tobacco." Reed Decl. at 38;see also Gonzales Decl. Ex. A at 22. Plaintiff has released the paragraph of this email relating to the proposed tobacco form letter, and continues to claim the deliberative process and presidential communications privileges for the other paragraphs, which "discuss the development and editing of form letters on other non-responsive topics including climate change, partial birth abortion, and health care reform." Id.

The Special Master recommends that the Court sustain the presidential communications privilege for the proposed redactions, as the communications are among the President's letter writers, and relate to draft letters to be signed by the President. Joint Defendants cannot show need for the redacted portions, which are not relevant to this case.³⁵

35 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

9. PRA078-1176-1176 [CD 128]

Mr. Reed describes this document as "a March 29, 1999 draft press guidance concerning a Washington Post story on tobacco counter-advertising campaigns aimed at reducing youth smoking." Reed Decl. at 38; see also Gonzales Decl. Ex. A at 22. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document, as there is no indication that this press QA does not actually reflect the Administration's position on this issue.

10. PRA078-1179-1180 [CD 129]

This document is a March 3, 1999 email from Cynthia A. Rice to Laura Emmett and J. Eric Gould "forwarding draft press guidance, including background information, concerning (1) the FTC announcement about a settlement with RJ Reynolds concerning Joe Camel, and (2) reports that tobacco companies could have produced safer cigarettes but refused to do so." Reed Decl. at 39; see also Gonzales Decl. Ex. A at 22. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the deliberative process privilege claim for page 1179, as it contains only a non-substantive forwarding email and an unreadable hex dump. The Special Master further recommends that the Court overrule the privilege claim for page 1180. Although the document is labeled a draft, there is no indication from Plaintiff that this document does not reflect Administration policy, as it was intended to do in final form.

11. PRA078-1267-1267 [CD 139]

This document is a July 17, 1998 email from Cynthia Dailard to Essence P. Washington, Policy Assistant, DPC, Michael Cohen, Special Assistant to the President for Education Policy, DPC, and Cynthia A. Rice "suggesting a meeting, including possible attendees, to discuss possible executive actions regarding education and tobacco." Reed Decl. at 39; see also Gonzales Decl. Ex. A at 22. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim. Here, the Associate Director for Domestic Policy, an immediate presidential advisor, proposes a meeting and sets forth issues she would like to discuss for executive action (or advising the President). The Special Master does not believe that Joint Defendants can show need for issues to be discussed at a meeting to formulate tobacco policy and education issues.³⁶

36 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

12. PRA078-1306-1310 [CD 142]

This document consists of two May 20, 1998 emails. The first is from Joseph C. Fanaroff, Special Assistant for Communications, Communications, WHO, EOP, to Cynthia A. Rice and Cynthia Dailard, with a copy to Laura Emmett, "forwarding draft talking points for a tobacco event (the attachment referred to is not part of the document) and seeking guidance as to how to phrase two parts of the talking points." Reed Decl. at 39; see also Gonzales Decl. Ex. A at 23. The second is from "Ms. Rice to Mr. Fanaroff, with copies to Ms. Emmett and Ms. Dailard, providing her responses to Mr. Fanaroff's questions and suggesting two further edits to the draft talking points." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 1307-1310, which contain only an illegible hex dump. The Special Master further recommends that the Court sustain the claim for page 1306, which is deliberative in nature insofar as it contains suggestions and recommendations for the draft talking points, and solicits feedback: " REDACTED ." The Special Master does not believe that Joint Defendants' need for this page outweighs Plaintiff's privilege claim as it is particularly candid. For example, Ms. Rice notes" REDACTED REDACTED ." Moreover, review of the page demonstrates that it is not particularly relevant to Joint Defendants' need arguments.

13. PRA078-1360-1363 [CD 144]

Plaintiff has released pages 1362-1363 and continues to claim the deliberative process and presidential communications privileges for pages 1360-1361, which contain "two May 16, 2000 emails discussing material to be included in a Presidential speech on tobacco." Reed Decl. at 39-40; see also Gonzales Decl. Ex. A at 23. The first is from J. Eric Gould to Joseph S. Gottheimer, Special Assistant to the Director of Speechwriting, Speechwriting, Communications, WHO, EOP, with copies to Andrea Kane and Karin Kullman "discussing the possible content of the speech, as well as suggested language;" and the second is from Mr. Gould to Bruce N. Reed, Ms. Kane, Ms. Kullman, and Cathy Mays, forwarding and commenting on the first. Id.

Pages 1362-1363 are the pages Plaintiff has released. Pages 1360-1361 are protected by the presidential communications privilege as they contain information solicited and received by high level presidential advisors in the course of their duties of advising the President. The Special Master does not believe that Joint Defendants can show need to overcome the presumptive privilege afforded these emails.³⁷

37 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

14. PRA078-1422-1423 [CD 148]

This document is a July 7, 2000 email from J. Eric Gould "to a large group of White House and OMB personnel requesting their review of Mr. Gould's draft tobacco paper to be used in conjunction with a possible radio address on youth smoking and tobacco companies, including the federal lawsuit." Reed Decl. at 40; see also Gonzales Decl. Ex. A at 23. 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 substantiated that the communications were solicited and received by high-level Presidential advisors in the course of their duties of advising the President. Here, there is no indication that the radio address was to be given by the President, and the draft radio address refers to the President and Vice President in the third person, indicating that the address was to be given by someone other than the President.

The Special Master does believe that the document qualifies for protection under the deliberative process privilege, as it seeks comments on the draft radio address, and therefore reflects the give-and-take of agency decisionmaking. The Special Master believes that Joint Defendants' need outweighs Plaintiff's privilege interest for the draft address contained on page 1423. Here, the address refers to action the Administration intended to take to reduce youth smoking, which is highly relevant to this lawsuit. Moreover, the draft address does not indicate an author, therefore it is not particularly personal in nature and the future chill on agency decisionmaking is minimal. Although Joint Defendants may have access to a final version, the Special Master believes that the other factors weigh in favor of disclosure of page 1423.

15. PRA078-1529-1530 [CD 151]

This document consists of two brief October 10, 2000 emails between Ripley Forbes, Office of the Secretary, HHS, and Christina S. Ho "discussing, briefly, the preparation of a paper (not part of this document) and an October 24, 2000 email from Ms. Ho to Mr. Forbes discussing in greater detail which statistics to use on children and smoking in Budget documents, including requesting guidance as to the statistics currently being used." Reed Decl. at 40; see also Gonzales Decl. Ex. A at 23. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as Ms. Ho seeks guidance regarding statistics cited by OMB for use in policymaking. The Special Master does not believe that Joint Defendants' need for this document is particularly strong, as they have access to the tobacco-use statistics that the government uses from other sources.

16. PRA078-1533-1540 [CD 152]

This document is a December 19, 2000 email from Bill Hall, HHS, to Christina S. Ho "and four unidentifiable employees at HHS forwarding `internal use only' press guidance on the `Hutchinson Smoking Prevention Project (HSPP).'" Reed Decl. at 40; see also Gonzales Decl. Ex. A at 23. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1533, which contains only a forwarding email and a hex dump. The Special Master further recommends that the Court overrule the claim for pages 1534-1540. While the document is labeled as for internal use only, it appears to reflect the Administration's policy regarding the Hutchinson Smoking Prevention Project, and to relay that policy. It is factual in nature and does not deliberate future policy.

17. PRA078-1580-1581 [CD 155]

"This document consists of four October 20, 2000 emails discussing which statistic should be used concerning the number of children who smoke cigarettes." Reed Decl. at 41; see also Gonzales Decl. Ex. A at 23-24. The first is from Christina S. Ho to Brooke B. Livingston, Legislative Analyst, Legislative Affairs, OMB, providing one statistic. The second is from Ms. Livingston to Thomas Reilly forwarding the first email and explaining how she obtained the statistic. The third is from Mr. Reilly to Ms. Livingston, Ms. Ho, Patrick Aylward, Frank J. Seidl, III, and Barry T. Clendenin providing a different statistic and discussing further which statistic to use; and the final email is from Ms. Ho to Mr. Reilly, with copies to Ms. Livingston, Mr. Aylward, Mr. Seidl, and Mr. Clendenin, suggesting a possible resolution with respect to which statistic to use.Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it discusses statistics the agency should use in its policymaking. Joint Defendants assert their belief that this document contains "discussions as to why young people choose to smoke and the factors leading to youth smoking [which] contain important evidence related to Plaintiff's allegations of fraudulent conduct . . . and Plaintiff's contentions that Joint Defendants' programs resulting from the MSA obligations for the prevention of youth smoking are ineffective," which would rebut Plaintiff's claims that Joint Defendants proximately caused youth smoking through their conduct. Mot. App. B at 7-8. The Special Master has reviewed the document and finds that it does not reflect the discussions that Joint Defendants speculate it contains; rather, the discussions relate to statistics used by the government. Joint Defendants' need for this information is not particularly strong as they have access to the statistics the government uses from other sources, and there is no need to invade Plaintiff's privilege to provide them with this information.

18. PRA078-1713-1715 [CD 160]

"This document is an email string discussing preparing press guidance concerning the 2000 Michigan study showing smoking rates among students." Reed Decl. at 41; see also Gonzales Decl. at 24. The two substantive emails are a December 13, 2000, Vicki Rivas-Vazquez, HHS, to Christina S. Ho, with copies to Leanne Shimabukuro, Associate Director for Domestic Policy, DPC, and Andrea Kane, forwarding her draft press guidance. The second email is also dated December 13, and is from Ms. Kane to Ms. Rivas-Vazquez, Ms. Ho, and Ms. Shimabukuro, and suggests a change in the proposed press guidance. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1715, as it contains no substantive information. The Special Master believes that the privilege applies to pages 1713-1714, which contain a discussion of how to present statistics regarding youth smoking.

Joint Defendants assert their belief that this document contains "discussions as to why young people choose to smoke and the factors leading to youth smoking [which] contain important evidence related to Plaintiff's allegations of fraudulent conduct . . . and Plaintiff's contentions that Joint Defendants' programs resulting from the MSA obligations for the prevention of youth smoking are ineffective," which would rebut Plaintiff's claims that Joint Defendants proximately caused youth smoking through their conduct. Mot. App. B at 7-8. Review of the emails demonstrates that the discussions are not what Joint Defendants speculate they are: they contain statistics on youth smoking trends, but not deliberations regarding why youths begin to smoke or factors contributing to youth smoking. The Special Master therefore does not believe that Joint Defendants' need for this information is particularly strong; because they have access to the government's statistics from other sources, there is no need to invade Plaintiff's privilege claim to have access to such readily-available information.

19. PRA078-1766-1767 [CD 161]

"This document consists of three November 6, 2000 emails concerning an NIH study on teen smoking." Reed Decl. at 42; see also Gonzales Decl. Ex. A at 24. The first is from Bill Hall, HHS, to Christina S. Ho, "with copies to a group of HHS and CDC personnel, alerting Ms. Ho to NIH plans concerning issuing a press release about a study on teen smoking and anxiety disorders;" the second is from Ms. Ho to Andrea Kane, "providing her analysis of the study and seeking guidance as to whom she should notify about the study;" and the third is from Ms. Kane to Ms. Ho, responding to Ms. Ho's request for guidance. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1767, which contains only an unreadable hex dump. The Special Master further recommends that the Court overrule the claim for page 1766, which refers to a study about to be published, and is not deliberative.

20. PRA078-1925-1927 [CD 165]

"This document consists of three January 12, 2000 emails concerning possible assessments on tobacco companies based upon youth smoking rates." Reed Decl. at 42; see also Gonzales Decl. Ex. A at 24. The first is from "Phil Ellis, Treasury, to a group of Treasury, White House, and OMB personnel, discussing an attached spreadsheet (not included in this document) in some detail as to the methodology and assumptions used to prepare the spreadsheet;" the second is from Joshua Gotbaum "to addressees who are not identified, but presumably include the Treasury officials, commenting on the analysis used by Treasury;" and the third is from "John McClelland, Treasury, to the large group of Treasury, White House, and OMB personnel, discussing the preliminary numbers and his opinion concerning them." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1925, which contains only the email copy list. The Special Master believes that pages 1926-1927 qualify for the deliberative process privilege, as they contain a candid and frank discussion of tobacco assessments and youth smoking rate assumptions: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."

The Special Master believes that Joint Defendants' need outweighs Plaintiff's privilege claim. Here, the discussions address the impact that assessments have on youth smoking, and how long the assessment should continue in order to be effective. The Special Master believes that these issues are sufficiently relevant to this matter to outweigh the interest that Plaintiff has in maintaining the confidentiality of its employees' discussions.

21. PRA078-1928-1928 [CD 166]

This document is a December 9, 1999 email from Cynthia A. Rice to Joshua Gotbaum and J. Eric Gould "discussing how the Administration should develop a lookback penalty, including giving her analysis of a congressional proposal." Reed Decl. at 42; see also Gonzales Decl. Ex. A at 24. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege. It contains a proposal for lookback charges and is recommendatory in nature: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants' need outweighs Plaintiff's privilege interest as these communications address penalties that could be assessed if youth smoking does not decrease, rather than actual ways to decrease youth smoking. Moreover, Joint Defendants have argued that communications such as this are relevant to their affirmative equitable defenses, see Mot. App. B at 11, which are no longer a part of this case.

22. PRA078-1929-1929 [CD 167]

This document is a November 1, 1999 email from Eugenia Chough to J. Eric Gould forwarding an October 29, 1999 email from Ms. Chough to Cynthia A. Rice "providing her analysis of how the Sen. Harkin proposal for a possible lookback penalty would operate and relaying an HHS proposal for determining youth smoking levels and assessing a lookback penalty." Reed Decl. at 43; see also Gonzales Decl. Ex. A at 25. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege, as it compares two proposals for a lookback penalty and discusses REDACTED REDACTED REDACTED REDACTED REDACTED . The Special Master does believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. Here, the discussions tie the assessments to possible reduction in youth smoking, which is a highly relevant issue in this litigation. In addition, this document is not so candid or personal in nature that its disclosure would threaten future candid agency discussions, nor are similar discussions available to Joint Defendants from other sources.

23. PRA078-1930-1935 [CD 168]

"This document consists of four November 3, 1999 emails discussing attached draft language for insertion in the HHS/Labor appropriations bill concerning a youth smoking penalty assessment." Reed Decl. at 43; see also Gonzales Decl. Ex. A at 25. The first is from Lester Cash, Chief, Science and Regulatory Affairs Branch, ASMB, HHS, to Frank J. Seidl, III and Richard J. Turman, "with copies to a large group of OMB personnel, forwarding the proposed language;" the second is from "Mr. Seidl to a large group of OMB personnel, again forwarding the proposed tobacco penalty language;" the third is from Cynthia A. Rice "to Mr. Seidl, noting a change in the proposed language and offering her suggestion as to which language to use;" and the final is from Eugenia Chough to J. Eric Gould and Ms. Rice, suggesting two further changes to the proposed language. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1931, which contains no substantive information. The Special Master believes that pages 1930 and 1932-1935, which propose language for the legislation, do qualify for the privilege as they are in draft form and do not reflect final agency policy. The Special Master believes that Joint Defendants' need outweighs Plaintiff's privilege claim, as information pertaining to youth smoking reduction is relevant. While Joint Defendants do have access to any final appropriations bill, the Special Master believes that the factors weighing in favor of disclosure, particularly the relevance of the material, are significant, and that there is not a significant danger of future chill.

24. PRA078-1955-1957 [CD 172]

"This document is four February 3, 2000 emails transmitting and discussing an attached tobacco paper for a Budget summary." Reed Decl. at 43; see also Gonzales Decl. Ex. A at 25. The first is from Anna Richter to Cynthia A. Rice "transmitting the attached draft tobacco paper that discusses, in the context of the President's 2001 Budget, youth smoking reduction and smoking cessation;" the second is from Ms. Rice to Ms. Richter "suggesting edits to the tobacco paper;" the third is from "Ms. Richter to Ms. Rice, asking a question relating to suggested edit to the tobacco paper;" and the final is from Ms. Rice to Ms. Richter, responding to the prior question. Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege as it contains a draft paper to be included with the budget summary, as well as the comments of Ms. Rice and Ms. Richter; therefore, it is deliberative and predecisional in nature. Although Joint Defendants have argued need for "discussions as to the cause of youth smoking, the effectiveness of certain steps to reduce the incidence of youth smoking and whether Plaintiff has fulfilled its obligations to take steps to reduce the incidence of youth smoking are all at issue," Mot. App. B at 12, the Special Master does not believe that Joint Defendants have shown need for this earlier draft with the comments of Administration employees when they have access to the final budget documents.

25. PRA078-1966-1975 [CD 176]

Plaintiff has released a portion of the document (from the bottom of page 1967 through page 1975), and continues to claim the deliberative process privilege for "two November 1, 1999, emails discussing legislative proposals for reducing youth smoking." Locke Decl. at 37. The first is from Daniel N. Mendelson to Richard J. Turman, Joshua Gotbaum, and Cynthia A. Rice "forwarding the materials that were released to defendants and seeking further information and follow up about how those materials square with information received from HHS." Id. The second is from Mr. Turman to Mr. Mendelson, Eugenia Chough, Frank J. Seidl, III, Ms. Rice, Victoria A. Wachino, Patrick G. Locke, and Mr. Gotbaum responding to the first "and reporting on a conversation with HHS about the legislative proposal and noting possible difficulties with the proposal." Id.

The Special Master believes that the proposed redactions qualify for the privilege. Here, the emails contain a request for more information (" REDACTED REDACTED REDACTED REDACTED REDACT and a response to the request, along with a suggestion for further action (" REDACTED REDACTED REDACTED REDACTED ."). The redacted portion is therefore deliberative and predecisional.

Joint Defendants assert that this document "seem[s] to address the existence and effectiveness of the MSA and other programs . . . [and is therefore] highly relevant to Joint Defendants' case because [it] go[es] to the heart of whether Plaintiff can meet its burden of demonstrating that there exists a reasonable likelihood of future misconduct." Mot. App. B at 7. The Special Master has reviewed the document and finds that it contains no such discussions. Joint Defendants have not established need for this information, which pertains to the conduct of surveys and essentially speaks to the process by which the agency formulates policy (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACT. As this is at the heart of the deliberative process privilege, the Special Master believes that Plaintiff's interest in protecting the quality of its agency decisionmaking process outweighs any need Joint Defendants may have for this information.

26. PRA078-2184-2184 [CD 182]

This document consists of "two emails discussing and analyzing an anticipated Morbidity and Mortality Weekly Report from the Centers for Disease Control and Prevention." Reed Decl. at 44;see also Gonzales Decl. Ex. A at 25. The first is dated October 11, 2000, and is from Christina S. Ho to Barbara Chow, Karin Kullman, and Anna Richter, with copies to Andrea Kane and Jennifer E. McGee "that notes Ms. Ho's interpretation of the critical issues expected to be discussed in the CDC's report and offers her opinion on the type of message this report will bring in support of reducing youth smoking."Id. The second is also dated October 11, and is from Ms. Ho to David Beier and forwards the email described above. Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. It contains an assessment of a report about to be released, and a policy recommendation as to its possible use: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED" It is therefore deliberative and predecisional in nature.

Joint Defendants have asserted their belief that this document contains discussions that "acknowledge that Plaintiff has deliberately and consciously . . . balance[d]" the risks of smoking with the awareness "and in some instances support, of Joint Defendants' allegedly fraudulent conduct." Mot. App. B at 12. The Special Master does not believe, however, that Joint Defendants have shown need for the comments of agency employees on a publicly available document.

27. PRA078-2664-2669 [CD 210]

This document is a June 18, 1998 email from Kate P. Donovan "to a large group of OMB and White House personnel that transmits and requests review of a draft Statement of Administration Position on the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Bill, FY 1999." Locke Decl. at 38; see also Gonzales Decl. Ex. A at 25-26. Mr. Locke explains that "[t]he document represents a preliminary and pre-decisional discussion of a proposed Administration policy on this bill, considering specific aspects of the bill that the Administration may find to be objectionable and providing proposed views on behalf of the Administration." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 2664, which contains only an email distribution list. The Special Master recommends that the Court sustain the presidential communications privilege for pages 2665-2669, which contain a draft statement of administration policy regarding the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Bill (S. 2159), and seeks comments and clearance for release the following day. This document solicits comments for use by a presidential advisor in the course of preparing advice for the President. Moreover, as Joint Defendants have access to the final statement of administration policy, the Special Master does not believe that they can show need for this presumptively privileged document.³⁸

38 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

28. PRA078-2746-2762 [CD 212]

This document is a March 24, 1998 email from Ariel Winter, Office of the Secretary, HHS, to Cynthia A. Rice, "with copies to James O'Hara, HHS, and Gary Claxton, Treasury, that transmits and discusses attached draft versions of specifications for proposed lookback penalties." Reed Decl. at 44; see also Gonzales Decl. Ex. A at 26. Mr. Reed explains that "[t]he transmittal email provides the author's opinions on the differences among these bill specifications and requests follow-up. The attachments consist of three preliminary alternative draft versions of the bill specifications [which] all address the purpose of lookback penalties, child tobacco use surveys, reduction in underage tobacco product usage, and noncompliance." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 2746-2747, which contains only transmittal information for the attached draft and are not deliberative in nature. The Special Master believes that pages 2748-2762 qualify for the privilege as they are draft alternative legislative proposals addressing youth smoking issues. The Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege interest. Here, the document contains three possible proposals by the Administration — such information is very relevant as it could assist Joint Defendants in assessing why the Administration chose one proposal over the other. Moreover, the draft specifications are not candid and personal in nature, therefore their disclosure is not likely to chill future agency discussions.

29. PRA171-0536-0536 [CD 272]

This document consists of two April 8, 1998 emails. The first is from Cynthia A. Rice to Jerold R. Mande, with copies to Thomas I. Freedman and Cynthia Dailard requesting data on youth smoking; and the second is from "Mr. Mande to Ms. Rice, with copies to Ms. Dailard and Mr. Freedman, responding to Ms. Rice's request and providing his opinion as to what course of action the Administration should take." Reed Decl. at 44-45; see also Gonzales Decl. Ex. A at 26. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim as the communications are not deliberative in nature; rather, Ms. Rice asks whether specific data exists, and Mr. Mande replies that it does not. Although Mr. Mande suggests that " REDACTED REDACTED REDACTED REDACTED ," this statement is not evocative of the give and take of agency deliberations taking place during the creation of agency policy.

30. PRA201-0914-0916 [CD 342]

Mr. Locke describes this document as "an undated (but most likely May 2000) internal draft White House update on three tobacco matters — the federal lawsuit (nonresponsive); magazine advertising (summary and analysis of research on tobacco magazine advertising and effect on youth smoking); and FDA tobacco bill introduced by Sens. Frist and McCain (critique of this bill)." Locke Decl. at 38. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0914-0915, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule the privilege claim for page 0916. Plaintiff has not provided any indication as to the author of this document, or the context in which it is created and therefore has not met its burden.Coastal States, 617 F.2d at 868. Moreover, it is factual in nature and not deliberative.

31. PRA203-0028-0031 [CD 374]

"This document consists of three emails concerning tobacco counter-advertising campaigns." Locke Decl. at 38. The first is dated February 22, 1999 and is from Melany Nakagiri to Daniel N. Mendelson, with copies to Jennifer M. Forshey, Frank J. Seidl, III, Richard J. Turman, and Gina C. Mooers "discussing three counter-advertising issues, including presenting current Administration thoughts on these issues."Id. The second is dated February 25, 1999 and is "from Mr. Mendelson to Ms. Nakagiri, with copies to Ms. Forshey, Mr. Seidl, Mr. Turman, and Ms. Mooers, asking questions about the information and analysis set forth in [the prior email] (with questions inserted into Ms. Nakagiri's email); and the third is also dated February 25 and is "from Mr. Turman to Mr. Seidl, and Ms. Forshey, asking them to take the lead in obtaining answers to the questions posed by Mr. Mendelson." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0028-0029, which contain only document identification numbers and no substantive information. The Special Master does believe that pages 0030-0031 qualify for the privilege as they contain suggestions and preliminary agency thinking on the REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. Here, the issue of REDACTED is very relevant, and although Plaintiff's interest in protecting the quality of its agency decisionmaking is strong, in light of the factors already weighing in favor of disclosure, the relevance, and Joint Defendants' inability to discover similar information from other sources, the Special Master recommends that the Court order Plaintiff to produce these communications to Joint Defendants.

32. PRA203-0322-0326 [CD 376]

This document consists of "two May 13, 1998 emails providing edits to NIH's proposed answers to questions posed by Sen. Harkin concerning tobacco research and youth smoking." Locke Decl. at 39. The first is from Richard J. Turman to David Rowe, with copies to Marc Garufi and Thomas Reilly "suggesting one change in terminology used in the answers;" and the second is from "Mr. Rowe to Mr. Turman, with copies to Mr. Garufi and Mr. Reilly, showing the edits that he plans to transmit to NIH." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document; as a draft, it represents the thinking of agency employees, and not yet the policy of the agency.

Joint Defendants assert their belief that this document "contain[s] discussions on how Joint Defendant's alleged conduct impacts or influences youth smoking" which is relevant to Joint Defendants' ability to rebut "Plaintiff's claims that Joint Defendants' conduct, such as Joint Defendants' advertising, caused youth to begin smoking." Mot. App. B at 8. Hence, "[i]mportant to this inquiry are documents [such as Challenged Document 143] containing discussions of Joint Defendants' alleged marketing activities involving youth." Id. at 9. The Special Master does not believe that Joint Defendants have shown need for this particular document, especially as they have available to them the final responses NIH provided to Senator Harkin.

33. PRA210-0477-0478 [CD 391]

This document is an October 6, 1997 email from Jerold R. Mande to Bruce N. Reed "seeking advice in answering White House correspondence (with respect to how to phrase the President's goal with respect to reducing youth and adult smoking)." Locke Decl. at 39. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0477, which contains only a document identification number and no substantive information. The Special Master recommends that the Court sustain the privilege claim for page 0478, where Mr. Mande seeks Mr. Reed's advice on addressing the issue referenced above. The Special Master does not believe that Joint Defendants have shown a need for communications addressing proposed language to be used in describing the Administration's goals with respect to tobacco priorities.

34. PRA214-0071-0073 [CD 401]

This document is a June 20, 1994 email from Gordon P. Agress, Program Examiner, Health/Personnel, OMB, to William L. Dorotinsky, Program Examiner, Health/Personnel, OMB; Barry T. Clendenin; Nancy-Ann Min; and Jill M. Blickstein, "analyzing and characterizing testimony anticipated to be given by the FDA concerning the manipulation of nicotine in cigarettes to determine what, if any, further review OMB should undertake of this testimony." Locke Decl. at 39. Mr. Locke explains that "[t]he email includes Mr. Agress's implicit recommendation as to whether there should be further review." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim with respect to pages 0071-0072, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0073, which contains an analysis of FDA testimony and concludes that " REDACTED REDACTED REDACTED REDACTED ." It is therefore recommendatory in nature as REDACTED . The Special Master does not believe that Joint Defendants have shown need which would entitle them to this document, particularly when they have access to the FDA testimony to which the analysis relates.

35. PRA216-0504-0504 [CD 422]

This document consists of two emails. The first is dated September 24, 1998 and is from Jim Esquea to Daniel N. Mendelson and Barry T. Clendenin, "with copies to persons not identified on the document, presenting and discussing a possible amendment to the Agricultural Appropriations bill proposed by HHS concerning enforcement of restrictions on cigarette vending machines." Locke Decl. at 40. The second is dated September 29, 1998, and is from Victoria A. Wachino to Mr. Mendelson, Charles E. Kieffer, Joshua Gotbaum, Mr. Esquea, Mr. Clendenin, and Gina C. Mooers "inquiring about the status of the amendment." Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that this document qualifies for the privilege as it contains the suggestions and opinions of agency employees offered in the course of formulating agency policy: " REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for deliberations relating to vending machine legislation.

36. PRA221-0125-0131 [CD 426]

This document is an October 24, 1999 email from Richard J. Turman to Robert G. Damus, General Counsel, OMB, forwarding the "Teen Smoking Assessment Package" edited by Bruce N. Reed. Locke Decl. at 40. Mr. Locke explains that "Mr. Turman provides a brief statement as to how his OMB division views the proposal as edited," and that "[t]he package, as presented, includes the following draft statements: (a) justification for and description of [the] proposal; (b) appropriations language for insertion into the Labor/HHS appropriations bill; and (c) [a] list of concerns the legislative language raises, with possible responses. The draft legislation language includes various alternative proposals. This memorandum includes the views of staff in OMB's Budget Review Division and General Counsel's office as to how to `score' the proposal and legal advice from the Department of Justice as to several potentially serious legal and constitutional infirmities with the proposal." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0125-0126, which contain only document identification numbers and no substantive information. The Special Master does believe that pages 0127-0131 qualify for the privilege, as they contain a draft teen smoking assessment package and are deliberative and predecisional in nature. The Special Master further believes that Joint Defendants' need for this document, which focuses primarily on reducing youth smoking, a highly relevant issue in this litigation, outweighs Plaintiff's privilege interest. Moreover, the document is not particularly personal to any employee or employees, and, from the comment of Mr. Turman that the comments look " REDACTED," are not likely to create a chilling effect on future agency deliberations.

37. PRA226-0014-0014 [CD 430]

"This document is a March 24, 1994 email from Stephen H. Semenuk, Policy Analyst, OIRA, OMB, to Kristina A. Emanuels, Policy Analyst, OIRA, OMB, that critiques proposed testimony concerning smoking and the proposed FDA tobacco rule." Locke Decl. at 40. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, Mr. Semenuk provides his personal opinion as to the FDA testimony: " REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for an agency employee's opinions on publicly available testimony.

38. PRA239-0265-0267 [CD 438]

Mr. Locke describes this document as "a May 17, 2000 draft `Tobacco Statement by the President' raising concerns about tobacco advertising targeted to teens and calling for further action to protect children from smoking." Locke Decl. at 41; see also Gonzales Decl. Ex. A at 27. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the privilege claims for pages 0265-0266, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the presidential communications privilege claim for page 0267, which is a draft statement to be given by the President, and is therefore presumptively privileged. The Special Master does not believe that Joint Defendants can show need for this document to overcome the protection afforded, particularly as they have available to them any final statements made by the President on tobacco issues.³⁹

39 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

39. PRA300-0147-0153 [CD 440]

"This document is a May 4, 2001 memorandum from Anne Phelps, Special Assistant to the President for Health Policy — Domestic Policy Council, and Diana Schact, Special Assistant to the President for Justice Policy — Domestic Policy Council, through Margaret Lamontagne, Assistant to the President for Domestic Policy — Domestic Policy Council, to the President concerning FDA regulation of tobacco, including recommendations as to possible Administration actions in this area, and the Department of Justice lawsuit (non-responsive)." Gonzales Decl. Ex. A at 27. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege for this document, as it was provided to the President to update him on various tobacco-related matters. The Special Master does not believe that Joint Defendants can show need for this presumptively privileged document.⁴⁰

40 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

e. Documents Relating to the Synar Amendment

Mr. Locke explains that the Synar Amendment, along with 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 41. He states that the Administration considered making changes to Synar, including whether the Substance Abuse and Mental Health Services Administration ("SAMHSA") "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.

Joint Defendants assert that, to the extent that the Challenged Documents in this section "contain discussions that reflect the failure of the states to take Synar seriously, or the failure to take necessary steps to enforce youth smoking laws, these Challenged Documents are important evidence that support Joint Defendants' affirmative defenses including laches, waiver and estoppel." Mot. App. B at 10. "Likewise, to the extent these Challenged Documents contain discussions that demonstrate Plaintiff 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 non-complying states to nevertheless receive block grant funding, they would also be important evidence to Joint Defendants." Id. They assert that these documents will support their contention that Plaintiff's efforts to stop "youth smoking were pro forma at best and that Plaintiff undermined the beneficent purposes of the Synar Amendment by allowing non-complying states to receive block grant funding." Id.

1. PRA078-0523-0523 [CD 67]

"This document is a September 23, 1999 email from Matthew L. Bennett, Office of the Deputy Director of Scheduling, OVP, EOP, to Monica M. Dixon, Deputy Chief of Staff, Office of the Vice President, OVP, EOP, discussing what position to take with a state concerning the application of Synar amendment penalties." Reed Decl. at 45; see also Gonzales Decl. Ex. A at 27. Mr. Reed explains that "[t]he email contains the author's characterization of certain issues raised by a state official concerning the application of Synar penalties and of possible HHS responses to the issues raised by the state official" as well as "the author's opinion of how the state official might respond to action taken by HHS." Id. He further states that, "[t]o the extent that the email recounts what issues the state official raised, that portion of the email is deliberative and not factual in nature because it represents the author's selection of what particular information is significant enough to bring to the attention of the recipient, and because it consists of the author's impression of these issues rather than the state official's views on application of Synar amendment penalties." Id. at 45-46. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document, as it simply relays facts and is non-deliberative in nature.

2. PRA078-0563-0579 [CD 72]

"This document consists of a string of three emails forwarding and discussing draft letters proposed to be sent to states by HHS concerning Synar amendment requirements and a memorandum analyzing potential changes in policy relating to the Synar amendment." Reed Decl. at 46; see also Gonzales Decl. Ex. A at 27. The emails are as follows: (a) January 18, 2000 from J. Eric Gould to Richard J. Turman, with copies to a group of White House and OMB personnel; (b) January 19, 2000 from Eugenia Chough to a group of White House and OMB personnel; and (c) from Mr. Gould to Sarah A. Bianchi and Matthew L. Bennett, with a copy to Ms. Chough. Id. Mr. Reed explains that "[t]he emails forwarding the draft letters and memorandum solicit comments from the recipients and indicate that further discussion will take place between certain Executive Branch entities regarding the content of the letters and the recommendations set forth in the memorandum" and "discuss options for the timing of the release of the draft letters to the states." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0565 and 0569 which contain no substantive information. The Special Master believes that the deliberations relating to the draft letters to the states (0563-0564), as well as the draft letters themselves (0566-0568, 0570-0572) qualify for the deliberative process privilege as they reflect the opinions of agency employees and not the policy of the Administration. See also RR # 135 at 7 (recommending that the Court sustain the privilege claim for similar draft letters). The Special Master further believes that the discussion paper addressing the proposed changes to Synar, contained at pages 0573-0579 qualifies for the privilege, but that Joint Defendants' need for these particular pages outweighs Plaintiff's interest. Joint Defendants have established that issues pertaining to enforcement of youth smoking regulations are relevant to the issue of incidence of youth smoking. This document is an internal discussion paper and not available to Joint Defendants from other sources, and it is not attributable to any particular agency employee or employees and therefore not likely to create a chilling effect on future agency discussions. The Special Master therefore recommends that the Court order Plaintiff to produce pages 0573-0579 to Joint Defendants.

3. PRA078-0807-0815 [CD 81]

This document is a February 2, 2000 email from Eugenia Chough "to a large group of White House, OMB, and HHS personnel forwarding and discussing an options paper drafted by HHS regarding proposed changes to the Synar program requirements." Reed Decl. at 46; see also Gonzales Decl. Ex. A at 28. Mr. Reed explains that "[t]he email forwarding the paper explains the purpose for which it is being forwarded and notes that the paper is intended for internal use only," and that "[t]he paper is a partial duplicate of Challenged Document 72." Id. Plaintiff claims the deliberative process privilege.

Similar to the discussion above regarding Challenged Document 72, the Special Master believes that this document and the forwarding email qualify for the deliberative process privilege, but that Joint Defendants' need for this information outweighs Plaintiff's privilege claim, as factors contributing to the incidence of youth smoking (including enforcement of regulations and incentives to do so) are relevant to this matter and outweigh Plaintiff's interest in its privilege.

4. PRA078-1174-1174 [CD 127]

This document is a March 31, 1999 email from Frederick J. DuVal to Jeanne Lambrew, Christopher Jennings, Mickey Ibarra, and William H. White, Jr. "seeking information about possible enforcement of the Synar Amendment regulation." Reed Decl. at 47;see also Gonzales Decl. Ex. A at 28. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document. Here, the email only provides anecdotal information about enforcement of Synar (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."), and is not deliberative in nature, nor does it seek information about Synar enforcement.

5. PRA078-2192-2200 [CD 184]

This document is a February 2, 2000 email from Eugenia Chough "to a large group of White House and OMB personnel, discussing and transmitting an internal discussion paper, `Proposed Changes to the Synar Amendment Program's Requirements.' The email also sets up a meeting that will address the attached discussion paper addressing proposed changes to the Synar Amendment." Reed Decl. at 47; see also Gonzales Decl. Ex. A at 28. Plaintiff claims the deliberative process privilege.

This document is a duplicate of Challenged Document 81. Consistent with that recommendation, the Special Master recommends that the Court sustain the privilege claim for this document, but order Plaintiff to release it to Joint Defendants as their need outweighs the privilege interest.

6. PRA203-0692-0694 [CD 377]

This document consists of two emails among White House and OMB personnel concerning the Synar Amendment. The first is dated January 14, 2000, and is from Cynthia A. Rice to Daniel N. Mendelson, with copies to Richard J. Turman, J. Eric Gould, and Eugenia Chough "transmitting and discussing three HHS documents — a paper with options for the Synar Amendment program and letters proposed to be sent by HHS to certain states (the attachments are not part of this document)." Locke Decl. at 41-42. The second is dated January 18, 2000, and is from Patrick Aylward to Mr. Mendelson, Molly O'Malley, Mr. Turman, Victoria A. Wachino, Frank J. Seidl, III, Marc Garufi, and Barry T. Clendenin "forwarding the three HHS documents and providing a summary of each of the documents, along with a proposed edit to one of the documents and OMB's views and recommendations." Id. at 42. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0694, which contains only an unreadable hex dump. The Special Master believes that pages 0692-0693 qualify for the privilege claim, as they address the discussion paper on changes to the Synar Amendment, referenced elsewhere in this section, but that Joint Defendants' need for this information outweighs Plaintiff's privilege interest.

7. PRA203-0782-0788 [CD 379]

Mr. Locke explains that this undated document "appears to be the first attachment referred to in Challenged Document #377. It is entitled `Proposed Changes to the Synar Program Requirements,' and provides information for discussion of potential options for changing the Synar Amendment program as it is administered by HHS. The paper also presents and explains in detail two proposed areas for changes and options, with recommendations, concerning each of those areas." Locke Decl. at 42. Plaintiff claims the deliberative process privilege.

This document is the same discussion paper addressed elsewhere in this section. Consistent with the other recommendations, the Special Master recommends that the Court sustain the privilege claim, but order Plaintiff to produce the document to Joint Defendants as their need for this information outweighs Plaintiff's privilege claim.

8. PRA206-1251-1255 [CD 383]

"This document is a January 27, 1997 email from Vivian Grishkot, WHO, EOP, to a large group of White House and EOP personnel, listing `hot issues' for the President in connection with his planned attendance at the Conference of Mayors meeting. (Most of the material in this document is non-responsive.) The tobacco issue discussed [in] this document concerns an assessment of certain states' performance under the Synar Amendment regulations." Reed Decl. at 47; see also Gonzales Decl. Ex. A at 28. Plaintiff claims the deliberative process privilege.

The only portion of this document related to tobacco is one paragraph, which is duplicated on pages 1252 and 1254, and provides an update on states that are not in compliance and action that may be taken. The Special Master believes that this document as a whole is protected by the deliberative process privilege, as it provides information to be used by policymakers in their decisionmaking, and that Joint Defendants have not shown need for information pertaining to non-compliant states.

9. PRA214-0032-0035 [CD 400]

This document is a December 10, 1994 email from Elisabeth Topel, Program Examiner, Health/Personnel, OMB, to Barry T. Clendenin, Jill M. Blickstein, and Richard J. Turman "relating information from HHS/SAMHSA concerning the proposed SAMHSA tobacco regulation and discussing Congressional and industry reaction to the proposed rule and strategy for proceeding." Locke Decl. at 42. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0032-0033, which contain only document identification numbers and no substantive information. The Special Master believes that pages 0034-0035 qualify for the privilege, as they relay information regarding congressional opinions on enforcement of Synar, and propose future action. The Special Master further believes that Joint Defendants' need for this information outweighs Plaintiff's privilege claim, as discussions regarding enforcement of Synar, and the potential effects of enforcement on youth smoking, are relevant to this case. While Plaintiff's interest in protecting the quality of its decisionmaking process is strong, such discussions are not available to Joint Defendants from other sources and, in light of the factors already weighing in favor of disclosure, the Special Master recommends that the Court order Plaintiff to produce pages 0034-0035 to Joint Defendants.

10. PRA216-0062-0065 [CD 421]

"This document consists of two September 20, 2000 emails concerning the Synar Amendment regulation." Locke Decl. at 42-43. The first is from Andrea Kane "to a large group of White House and OMB personnel, discussing and assessing the prospects of passage of legislation concerning the Synar Amendment; identifying states and jurisdictions out of compliance with the Synar Amendment; and reporting on HHS notifications to these states and jurisdictions." Id. at 43. The second is from Patrick Aylward to Thomas Reilly "seeking guidance as to a request he proposes to make to HHS." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0062-0063, as they contain only document identification numbers and no substantive information. The Special Master further recommends that the Court overrule the privilege claim for the email from Ms. Kane on page 0064-0065, which contains an after-the-fact explanation of action taken regarding Synar non-compliance. This information is non-deliberative and is not inextricably intertwined with the deliberative email from Mr. Aylward, contained on page 0064, which notes, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " Mr. Aylward's email seeks information regarding how to proceed on this issue and is deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this email.

11. PRA234-0050-0055 [CD 432]

"This document consists of two June 12, 2000 papers prepared by HHS and sent to OMB for its review: (a) `Proposed Revision to Synar Program Penalty Structure,' presenting a proposed revision to the statute; and (b) `HHS Responses to OMB Questions and Comments Regarding Proposed Synar Penalty Restructuring,' explaining edits made to an earlier proposal and the rationale for the current proposal." Locke Decl. at 43. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0050-0051, which contain only document identification numbers and no substantive information. The Special Master believes that pages 0052-0055 qualify for the privilege, but that Joint Defendants' need for relevant information pertaining to proposed revisions to the Synar Amendment outweighs Plaintiff's interest in its privilege, particularly where, as here, such internal discussion papers are not available to Joint Defendants from other sources. Moreover, the documents are not attributable to any particular agency employee, therefore the future chilling effect is not as strong.

f. Documents Pertaining to Veterans' Benefits Coverage of Tobacco-Related Illnesses

The documents in this section address the 1993 Department of Veterans Affairs (VA) Office of General Counsel (OGC) opinion "that Federal law compelled VA to provide disability compensation or death benefits for those veterans with certain tobaccorelated illnesses and disabilities resulting from tobacco use during active military service," and the 1997 OGC opinion that "Federal law compelled payment of compensation benefits for those veterans whose tobacco-related disability was due solely to nicotine dependence that began in military service." Locke Decl. at 43. Mr. Locke notes that the 1997 OGC decision had prospective costs in the billions, and that "the White House, OMB, and the VA began to evaluate the likely effects on the VA and the Federal Budget of these opinions and to consider policy options for a possible amendment to the relevant Federal law." Id. These evaluations culminated in the Clinton Administration proposing legislation to amend Federal law on this point, which led to the passage of the Transportation Equity Act for the 21st Century (TEA-21), later amended for technical corrections by the TEA 21 Restoration Act. Id. at 44.

Joint Defendants assert that, "[t]o the extent these documents contain discussions reflecting that the fundamental rationale behind the legislation was that smoking was a matter of choice, such discussions are directly relevant to Joint Defendants' affirmative defenses, such as `unclean hands,' ` in pari delicto,' and `equitable estoppel.'" Mot. App. B at 23. They further contend that "such an acknowledgement would also be relevant to Plaintiff's allegations of fraud." Id. They also argue that "any discussions in these documents reflecting upon the role and responsibility of Plaintiff itself in fostering smoking within the military are relevant to Joint Defendants' affirmative defenses related to Government involvement in the regulation, sale and promotion of tobacco products, including its affirmative defenses of `unclean hands' and ` in pari delicto.'" Id. at 24.

Because Joint Defendants primarily base their need arguments on the relevance of the information to their affirmative equitable defenses, which have since been dismissed from the case, the Special Master notes that such arguments are not persuasive to the question of relevance to the remaining claims and defenses to justify overcoming Plaintiff's privilege interest. To the extent that the documents contain discussions regarding whether smoking is a matter of choice, as Joint Defendants assert that such discussions would be relevant to Plaintiff's claims of fraud, documents addressing this issue may be relevant to this matter and, depending on the outcome of the in camera review, may be releasable based on need.

1. PRA061-1259-1262 [CD 10]

"This document consists of two June 18, 1997 emails from David Zavada, Program Examiner, VA, Health/Personnel, OMB, to Bruce D. Long, Deputy Associate Director, VA, Health/Personnel, OMB, and Toni A. Hustead, Chief, Veterans Affairs Branch, Health/Personnel, OMB, with copies to a large group of OMB employees, concerning the prospects for passage of VA tobacco legislation proposed in the FY1998 Budget." Locke Decl. at 44. Mr. Locke explains that the email discusses Mr. Zavada's views "in detail" regarding "what he describes as `the current quandary' with respect to trying to obtain approval of the legislation and asks for guidance from others within OMB as to what VA should be doing with respect to tobacco-related claims and what actions by VA that OMB will approve." Id. He further explains that "[t]he second email presents Mr. Zavada's views as to the relationship between OMB's position on what VA should do with respect to tobacco-related disabilities and the Administration's FDA policy on tobacco and gives his further views concerning the effect of the VA decisions on tobacco-related disabilities." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, as it addresses policy issues relating to payment of VA claims for tobacco dependence needing resolution. The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege interest, as the document does not discuss whether nicotine dependence is a disease or whether smoking is a choice, but whether the VA should, as policy, award compensation for conditions related to the use of an addictive drug: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Therefore, Joint Defendants have not established relevancy sufficient to outweigh Plaintiff's privilege claim.

2. PRA062-0531-0531 [CD 15]

This document is an April 21, 1997 email from David Zavada to Toni A. Hustead, "with copies to a large group of OMB employees, providing information about VA's legislative proposal to restrict compensation benefits for tobacco-related disabilities, including an explanation as to how pending claims would be adjudicated." Locke Decl. at 44-45. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document, which is an "fyi" and a "short informational background" on the subject of VA compensation, and does not appear to be part of agency deliberations.

3. PRA062-0532-0532 [CD 16]

This document is an April 21, 1997 email from David Zavada to Nancy-Ann Min, "with copies to a large group of OMB personnel, discussing the legislative referral memorandum (LRM) that requests review of VA's transmittal to Congress of legislation to restrict compensation benefits for tobacco-related disabilities to Congress and providing the author's opinion as to the language in the proposed VA transmittal letter and discussing his views as to the need for further review of the letter." Locke Decl. at 45. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this email, which contains Mr. Zavada's personal opinion on the LRM: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." As this document does not relate to the issue of whether smoking is a choice, Joint Defendants have not established sufficient need to overcome the privilege claim.

4. PRA062-0605-0606 [CD 18]

This document is a July 1, 1996 email from David Zavada to Bruce D. Long, "with copies to a large group of OMB personnel, concerning VA tobacco policies and costs of those policies." Locke Decl. at 45. Mr. Locke explains that "[t]he email provides background on VA's policy for approving compensation benefits for tobaccorelated disabilities and includes Mr. Zavada's views as to why VA-proposed legislation in 1995 was not cleared by the White House and describes current VA efforts concerning drafting a regulation to cover certain tobacco-related disabilities" and also "discusses potential costs of the VA-proposed regulation."Id. "Included on the paper copy of the email are handwritten notes concerning certain of the topics discussed in the email." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim as this memorandum contains the personal opinions of an agency employee regarding Administration policy on the VA tobacco-compensation issue: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." As the document does not address whether smoking is a choice, the Special Master does not believe that Joint Defendants have shown need sufficient to overcome the privilege claim.

5. PRA062-0614-0616 [CD 19]

This document consists of three July 9, 1996 emails from David Zavada. The first is to Nancy-Ann Min, with copies to Bruce D. Long, Toni A. Hustead, Lynn Ross, Program Examiner, VA, Health/Personnel, OMB, and Karen S. Dooley, "concerning VA tobacco policy, including offering his views as to why VA did not appeal the 1993 Board of Veterans Appeals decision awarding VA compensation for a tobacco-related condition, transmitting VA's views with respect to proposed legislation concerning tobacco-related disabilities, and describing a possible VA regulation concerning VA compensation for tobacco-related disabilities." Locke Decl. at 45-46. The second is to Bruce D. Long, "with a copy to Ms. Ross, noting a question about how the proposed legislation fits in with overall Administration policy and suggesting that Ms. Min discuss with VA;" and the third forwards the first two to Toni A. Hustead. Id. at 46. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0614 as it is ministerial in nature and not deliberative. The Special Master further recommends that the Court sustain the privilege claim for pages 0615-0616, as they contain proposals with regard to the creation of agency policy: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED " As these discussions do not pertain to the issue of whether smoking is a choice, the Special Master believes that Joint Defendants have not shown sufficient need to overcome Plaintiff's privilege.

6. PRA062-0638-0640 [CD 20]

This document is a copy of the first email in Challenged Document #10. Locke Decl. at 46. Consistent with the recommendation for Challenged Document 10, the Special Master recommends that the Court sustain the privilege claim notwithstanding Joint Defendants' claim of need.

7. PRA062-0647-0648 [CD 21]

"This document is a copy of Challenged Document #18, but not including the handwritten notes." Locke Decl. at 46. Consistent with the recommendation for Challenged Document 18, the Special Master recommends that the Court sustain the privilege claim notwithstanding Joint Defendants' claim of need.

8. PRA062-0649-0651 [CD 22]

This document is a June 19, 1997 email from David Zavada to Bruce D. Long and Toni A. Hustead, Chief, "with copies to a large group of OMB employees, that is [a] slightly revised version of the first email in Challenged Document #10, concerning the prospects for passage of tobacco legislation proposed in the FY1998 Budget." Locke Decl. at 46. Mr. Locke explains that "Mr. Zavada discusses in detail his views as to what he describes as `the current quandary' with respect to trying to obtain approval of the legislation and asks for guidance from others within OMB as to what VA should be doing with respect to tobacco-related claims and what actions by VA that OMB will approve." Id. Plaintiff claims the deliberative process privilege.

Consistent with the recommendation for Challenged Document #10, the Special Master recommends that the Court sustain the privilege claim notwithstanding Joint Defendants' claim of need.

9. PRA062-0670-0670 [CD 24]

"This document is a duplicate of the earliest-in-time email in Challenged Document #19, with the addition of handwritten notes in the margin concerning the issues discussed in the email." Locke Decl. at 47. Consistent with the recommendation for Challenged Document #19, the Special Master recommends that the Court sustain the privilege claim notwithstanding Joint Defendants' claim of need.

10. PRA171-0098-0111 [CD 240]

"This document is a June 25, 1997, email from Belinda Pfau, WHO, EOP, to the Cabinet Affairs group forwarding a memorandum for Erskine Bowles, Chief of Staff, White House, from Jesse Brown, Secretary, VA — the Weekly Report for June 25, 1997, covering a number of areas, including a discussion of the Administration's legislative proposal to disallow compensation claims for disabilities for tobacco-related illnesses." Reed Decl. at 48; see also Gonzales Decl. Ex. A at 28. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0098, which is a transmittal sheet with no substantive information. The Special Master recommends that the Court sustain the presidential communications privilege for pages 0099-0111 as the document was prepared for the President's Chief of Staff for use in preparing advice for the President.⁴¹ The majority of the document is non-responsive, with the exception of a paragraph on page 0100, which discusses public opinion on the proposal to disallow tobacco compensation. The Special Master does not believe that Joint Defendants can show substantial need for this paragraph (or the rest of the document).

41 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

11. PRA171-0355-0355 [CD 257]

This document is a May 26, 1998 email from William H. White, Jr. to Cynthia Dailard "assessing/analyzing comments made to the President about veterans and tobacco and relating his understanding as to how the Administration will respond on this issue." Reed Decl. at 49; see also Gonzales Decl. Ex. A at 28-29. 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 reflects information to be provided to the President for use in developing Administration policy: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master does not believe that Joint Defendants can show the requisite need to overcome the presumptive privilege, particularly as the communications do not address the issue of whether smoking is a choice.⁴²

42 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

12. PRA202-0082-0084 [CD 348]

This document is a June 25, 1997 email from Nancy-Ann Min to Barry J. Toiv, with a copy to Bruce D. Long "providing background information and analysis to Mr. Toiv to assist him in answering questions about the proposed legislation concerning VA coverage of tobacco-related disabilities." Locke Decl. at 47. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0082-0083, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0084, which contains a narrative in response to questions posed by Mr. Toiv, and Ms. Min's subjective opinion that her " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The Special Master further believes that Joint Defendants have not shown need for this document as it does not address the issue of whether smoking is a choice.

13. PRA214-0115-0117 [CD 403]

This document consists of two emails dated June 23, 1995. The first is from David Zavada to Toni A. Hustead; Lynn C. Ross; Alexander S. Keenan, Program Examiner, VA/Personnel, Health/Personnel, OMB; Dennis L. Stout, Program Examiner, VA/Personnel, Health/Personnel, OMB; and Lavonne D. Sampson, Program Assistant, VA/Personnel, Health/Personnel, OMB, concerning the budget impact of awarding compensation benefits to veterans with tobacco-related disabilities. Locke Decl. at 47. In the second email, Ms. Hustead forwards the first email to Shirley Carozza, Director of the Budget, VA. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0115-0116, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0117, which contains Ms. Hustead's analysis of the VA tobacco legislation: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDAC" As this discussion does not concern the issue of whether smoking is a choice, the Special Master does not believe that Joint Defendants have shown need for this email.

14. PRA214-0118-0120 [CD 404]

This document is an October 16, 1995 email from David Zavada "to Allison H. Eydt, Policy Analyst, OIRA, OMB, commenting on and seeking further information about the White House's position on the VA's `nicotine policy' in a proposed regulation." Locke Decl. at 48. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0118-0119, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0120, which is deliberative in nature as Mr. Zavada seeks information pertaining to the Administration's position on the VA tobacco compensation issue: " REDACTED REDACTED REDACTED REDACTED ." As the email does not address the issue of whether smoking is a choice, the Special Master does not believe that Joint Defendants have shown sufficient need for this document to overcome Plaintiff's privilege interest.

g. Documents Regarding International Tobacco Issues

With respect to the documents in this section, Mr. Reed states:

President Clinton, in his September 17, 1997 remarks concerning the June 1997 proposed settlement between the states and the tobacco companies, 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." To that end, 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. This work included participation in the World Health Organization's Framework Convention on Tobacco Control ("FCTC").

Reed Decl. at 49.

Joint Defendants argue that, to the extent Challenged Documents "review or discuss trade policies that are different from domestic tobacco policy or comment on why domestic and export policies should, may, or do differ, they may reflect evidence that refutes Plaintiff's allegations against Joint Defendants. For example, those documents likely reflect Plaintiff's longstanding policy of balancing health consequences associated with the interest in boosting the economy and collecting billions of dollars in revenues from international trade." Mot. App. B at 16.

1. PRA078-0145-0148 [CD 55]

This document consists of three emails concerning the FCTC. The first is dated November 11, 1999 and is from "Dr. Thomas Novotny, Assistant Surgeon General, Deputy Assistant Secretary for International and Refugee Health, HHS, to a large group of Executive Branch personnel reporting on discussions with Dr. David Satcher, Surgeon General, HHS, concerning the U.S. positions to be taken concerning the FCTC and Dr. Satcher's discussions with movie producers concerning depicting smoking in movies." Reed Decl. at 49; see also Gonzales Decl. Ex. A at 29. The second is dated November 12, 1999, and is from Kenneth W. Bernard, Special Advisor to the Assistant to the President for National Security Affairs, NSC, EOP, to Dr. Novotny, with copies to Dennis Hohman, HHS, and Cynthia A. Rice, commenting on two of the issues raised in the first email. The third email is dated November 15, 1999, and is from Dr. Novotny to Mr. Bernard, with copies to Ms. Rice and Mr. Hohman, commenting on the participation of Ripley Forbes, HHS, in the FCTC process. Id. at 49-50. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0147-0148, which contain only a copy list and an unreadable hex dump. The Special Master further recommends that the Court overrule the privilege claim for page 0146, an email from Barbara Langford, Director of the Smokefree Coalition in New Zealand, which describes discussions that took place with Surgeon General Satcher and some members of his staff during a trip to New Zealand Finally, the Special Master recommends that the Court overrule the privilege claim for page 0145, which contains Mr. Bernard's comments on Ms. Langford's email, but do not appear to be part of any agency deliberations on any particular issue.

2. PRA078-0918-0918 [CD 93]

Plaintiff has released the portion of this document that contains the question and answer, but continues to claim the deliberative process privilege for the remainder, which "consists of background information, the purpose of which was to inform the press office's understanding of the issue discussed in the question and answer in its preparation to make a statement on behalf of the Administration." Reed Decl. at 50; see also Gonzales Decl. Ex. A at 29. Mr. Reed explains that "[i]t was not uncommon for such background information to be included in press guidance, and such background information was not intended to become a part of the statement made by the press office; rather, it was intended to inform the Administration's spokesperson on matters of Administration policy and actions in order to assist the spokesperson in deciding how to respond to questions about the policy or action. The background information in this document is not simply a recitation of facts, but rather is revelatory of strategy and thought processes used in developing the Administration's position on the Doggett Amendment." Id.

The Special Master recommends that the Court overrule the privilege claim for the proposed redaction, as it serves to explain the policy of the Administration, and is therefore not predecisional.

3. PRA078-1421-1421 [CD 147]

This document is an August 4, 2000 email from Christina S. Ho to Andrea Kane "asking Ms. Kane to review Ms. Ho's draft language to be sent to HHS for inclusion in remarks about tobacco control to be made by Donna Shalala, Secretary, HHS, to the Tobacco World Conference." Reed Decl. at 50; see also Gonzales Decl. Ex. A at 29. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document seeks advice on a draft and therefore reflects the give and take of agency deliberations. The Special Master further believes that Joint Defendants have not shown need for this document as they have not demonstrated the relevancy of drafts of comments that Secretary Shalala was to make to the Tobacco World Conference, and as they have access to any final statements made.

4. PRA078-2394-2394 [CD 190]

Plaintiff has released the portion of the document containing the question and answer on the Doggett Amendment, and continues to claim the deliberative process privilege for the background paragraphs on the Doggett Amendment, which are duplicates of the background paragraphs claimed privileged in Challenged Documents 204, 205, and 206. Reed Decl. at 50-51; see also Gonzales Decl. Ex. A at 29-30.

This document is a duplicate of Challenged Document 93. Consistent with that recommendation for Challenged Document 93, the Special Master recommends that the Court overrule the privilege claim for the proposed redaction.

5. PRA078-2425-2429 [CD 195]

This document consists of four September 12, 2000 emails that address attached QAs on the Doggett Amendment and discusses additions to the QAs. Reed Decl. at 51; see also Gonzales Decl. Ex. A at 30. They are described as follows: (a) from Anna Richter to Jenni R. Engebretsen, Deputy Director of News Analysis, OEOB Press Office, Press Secretary, WHO, EOP, with copies to Karin Kullman; Jose Cerda, III, Special Assistant to the President For Health Policy, DPC; Christina S. Ho; and Andrea Kane, "transmitting the attached QAs on the Doggett Amendment to H.R. 4986 and addressing additional information that should be addressed in the QA;" (b) from Ms. Ho to Ms. Engebretsen, Ms. Kullman, Andrea Kane, Barbara Chow, and Jennifer E. McGee, with copies to John D. Duncan, Jr., Special Advisor on International Economic Policy and Counselor, National Security Council ("NSC"), EOP; Karl Ehlers, USTR, EOP; Patrick M. Dorton, Special Assistant to the President and Communications Director, NEC, OPD; and Sean R. Dobson, Advisor for Communications and Strategy, DPC, addressing additions to attached QAs and forwarding the email described above; (c) Mr. Dobson to Hal Scott Shapiro, Senior Advisor for International Economic Policy and Senior Counselor to the Director, OPD, requesting assistance and forwarding the emails described above; (d) Mr. Shapiro to Mr. Duncan forwarding the emails described above. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2426, which is an illegible hex dup. The Special Master further recommends that the Court overrule the privilege claim for page 2429, as this page is a duplicate of Challenged Document 93. The Special Master also recommends that the Court overrule the privilege claim for pages 2427-2428, which are a partial duplicate of Challenged Document 93, with additional information pertaining to actions the Administration has already taken, and not deliberations regarding future actions. Finally, the Special Master recommends that the Court overrule the privilege claim for page 2425, which contains non-deliberative ministerial email communications among government employees.

6. PRA078-2450-2451 [CD 198]

This document is a September 12, 2000 email from Christina S. Ho "to a large group of White House and EOP personnel, forwarding draft press guidance on the Doggett Amendment and seeking edits and comments from the recipients." Reed Decl. at 51; see also Gonzales Decl. Ex. A at 30. Plaintiff claims the deliberative process privilege.

This document is an earlier draft of Challenged Document 93. As an earlier draft, the Special Master believes it should be protected by the deliberative process privilege, and that Joint Defendants cannot show need for the earlier version as they have access to the final version.

7. PRA078-2459-2460 [CD 200]

This document consists of "four September 11, 2000, emails that discuss and formulate the Clinton Administration's position for an article on The Washington Post." Reed Decl. at 52; see also Gonzales Decl. Ex. A at 30. They are described as: (a) from Helaine Klasky, Deputy Assistant USTR for Public Media Affairs, USTR, to Patrick M. Dorton, "with copies to Michelle A. Smith, Treasury, and [Steven] Posner, [Treasury] that involves the participants' concerns on the effect of information related to the Post story and discusses that certain language to be used will be cleared by the White House;" (b) from Ms. Klasky to Mr. Dorton, with copies to Mr. Posner and Ms. Smith, forwarding the email described above; (c) from Mr. Dorton to John D. Duncan, Jr. forwarding the emails described above; and (d) from Mr. Duncan to Mr. Dorton, "forwarding the emails described above and requesting [an] update when language from the White House is received."Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2460, which is blank. The Special Master further recommends that the Court sustain the privilege claim for page 2459, which addresses proposed action in responding to a media request: " REDACTED REDACTED REDACTED REDACTED REDACTED REDAC" Joint Defendants have not demonstrated any relevancy or need for discussions pertaining to how the Administration should respond to press inquiries to the USTR's Office.

8. PRA078-2493-2494 [CD 203]

This document consists of two September 12, 2000 emails. The first is from Christina S. Ho "to a large group of White House and EOP personnel, transmitting and requesting comment on draft press guidance relating to the Administration's position on the Doggett Amendment;" and the second is from John D. Duncan, Jr. to Ms. Ho sending a non-substantive reply to the first. Reed Decl. at 52; see also Gonzales Decl. Ex. A at 31. Mr. Reed explains that, "[a]t the time [the first] email was written, the press guidance was not final and was subject to further comment and revision by the recipients before transmission to the press office." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2494, which contains only a cc list. Page 2493 is a copy of Challenged Document 198. Consistent with the recommendation for Challenged Document 198, the Special Master recommends that the Court sustain the privilege claim for page 2493, notwithstanding Joint Defendants' claimed need.

9. PRA078-2495-2498 [CD 204]

Plaintiff has released the majority of this document to Joint Defendants, but continues to claim the deliberative process privilege for the "background paragraphs on page 2496." Reed Decl. at 52; see also Gonzales Decl. Ex. A 31. Mr. Reed explains that "these background paragraphs are duplicates of the privileged background paragraphs withheld in Challenged Documents 190, 205, and 206." Id.

This document is essentially a duplicate of Challenged Document 195. Consistent with the recommendation for Challenged Document 195, the Special Master recommends that the Court overrule the privilege claim for this document.

10. PRA078-2502-2506 [CD 205]

Plaintiff has released the majority of this document, and continues to claim the deliberative process privilege for page 2506, which contains "the background paragraphs on the Doggett Amendment." Reed Decl. at 53; see also Gonzales Decl. Ex. A at 31. Mr. Reed explains that "these background paragraphs are duplicates of the privileged background paragraphs withheld in Challenged Documents 190, 204, and 206." Id.

This document is also a basic duplicate of 195, with the addition of a few ministerial emails. Consistent with the earlier recommendation, the Special Master recommends that the Court overrule the privilege claim.

11. PRA078-2513-2513 [CD 206]

Plaintiff has released a portion of this document, but continues to claim the deliberative process privilege for "the background paragraphs on the Doggett Amendment," which are "duplicates of the privileged background paragraphs withheld in Challenged Documents 190, 204, and 205." Reed Decl. at 53; see also Gonzales Decl. Ex. A at 31.

This document is a duplicate of Challenged Document 93. Consistent with the recommendation for Challenged Document 93, the Special Master recommends that the Court overrule the privilege claim.

12. PRA078-2763-2764 [CD 213]

"This document is a March 5, 1998 email from Paul V. Aceto, State Department, to Sherman G. Boone, Director, International Economic Council, NSC, EOP, that discusses topics that should be discussed regarding tobacco guidelines sent to the State Department at an upcoming meeting." Reed Decl. at 54; see also Gonzales Decl. Ex. A at 31-32. Mr. Reed explains that "[t]he document provides the author's opinions on whether these issues should be discussed and discloses the author's views on internal discussions within the Executive Branch on interpretation of the guidelines." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2764, which contains only an email copy list and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 2763, which raises the issue of whether REDACTED REDACTED REDACTED . Joint Defendants argue that "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants." Mot. App. B at 16-17. The Special Master has reviewed the document and finds that it does not contain such communications, and therefore does not believe that Joint Defendants have shown need for this document.

13. PRA078-2850-2852 [CD 216]

This document is a March 31, 1998 email from Paul V. Aceto to Sherman G. Boone "transmitting and discussing attached draft QAs on `Code of Conduct for Labeling and Advertising' of Tobacco." Reed Decl. at 54; see also Gonzales Decl. Ex. A at 32. Mr. Reed explains that the "document provides the author's analysis [and] substantive opinion on the attached draft QAs, and the draft QAs address the Administration's views whether the tobacco industry should be prohibited from selling, advertising, or marketing tobacco products to children overseas." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2852, which contains only the email distribution information. The Special Master further recommends that the Court sustain the privilege claim for the draft press guidance, and the email seeking feedback and additional information for the guidance, as these documents reflect the view of agency employees and not the policy of the agency. The Special Master does not believe that Joint Defendants have shown need for this information, particularly as they do have access to any final Administration release on this issue.

14. PRA171-0003-0004 [CD 238]

"This document is a November 11, 1996 email from Ron Klain, Chief of Staff, OVP, to Al Gore, Vice President, that provides updates on `Hot Items,' including tobacco exports (review of policy)." Brown Decl. at [238]; see also Gonzales Decl. Ex. A at 32. Ms. Brown explains that the "document includes the writer's views and advice on information involving the decision-making of both the President and Vice-President on tobacco export issues." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege claim. Here, Mr. Klain provides information to Vice President Gore, who is a high level Presidential advisor, advising him of REDACTED REDACTED REDACTED REDACTED. Ms. Brown states that the Vice President and President were involved in the decisionmaking on this issue, therefore the Special Master believes that with respect to this communication to the Vice President, the presidential communications privilege should apply. The Special Master does not believe that Joint Defendants can meet the standard to overcome the presumptive privilege for this document, as they have not established how communications such as this are directly relevant to central issues in this matter.⁴³

43 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

15. PRA171-0136-0136 [CD 243]

This document is a September 24, 1997 email from Daniel Tarullo, Deputy Assistant to the President for Economic Policy, NEC, OPD, to Sherman G. Boone "offering four suggested changes/edits/comments to proposed testimony by Donna Shalala, Secretary, HHS, concerning tobacco (international tobacco sales)." Reed Decl. at 54; see also Gonzales Decl. Ex. A at 32. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document, which contains proposed changes to testimony to be given by Secretary Shalala, 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 access to any final testimony given by Secretary Shalala, and as they have not demonstrated the relevance of comments to the draft testimony.

16. PRA171-0510-0510 [CD 267]

This document is a June 6, 1997 email from Bruce N. Reed "to Mark Mazur, Senior Director, NEC, OPD, discussing and requesting further information concerning the U.S. share of total cigarette sales worldwide." Reed Decl. at 54; see also Gonzales Decl. Ex. A at 32. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, Mr. Reed asks: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." It is therefore deliberative and predecisional in nature. Joint Defendants argue that "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants." Mot. App. B at 16-17. The Special Master has reviewed the document and notes that it does not contain communications on this matter; therefore Joint Defendants have not shown need for this document, as they have not demonstrated the relevancy of communications requesting data on U.S. share of cigarettes sold worldwide.

17. PRA171-0526-0526 [CD 269]

This document is a February 25, 1998 email from Sherman G. Boone to Cynthia A. Rice, Mary L. Smith, and Thomas I. Freedman "providing draft press guidance on the Administration's position on international tobacco control efforts." Reed Decl. at 55; see also Gonzales Decl. Ex. A at 32. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Boone provides information regarding the Administration's position, and seeks feedback: he notes that REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants can show need for this document, particularly as they would have access to any final press guidance.

18. PRA171-1266-1266 [CD 299]

This document consists of "two June 27, 2000 emails discussing whether to respond to a letter the Administration received concerning tobacco tariffs and China, as well as a proposed draft response." Reed Decl. at 55; see also Gonzales Decl. Ex. A at 32. The first is from Daniel Rosen, Special Assistant to the President and Associate Director of Advance, WHO, EOP, to Jeffrey Oakman, Writer, Presidential Letters, Staff Secretary, WHO, EOP, discussing whether to respond; and the second is from Mr. Oakman to Mr. Rosen, with a proposed response. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. The email exchange addresses Agriculture Department policy (" REDACTED REDACTED REDACTED REDACTED REDACTED") as well as a proposed response to a letter concerning tobacco and trade relations with China. The Special Master does not believe that Joint Defendants have shown need for communications relating to the Administration's policy in responding to comments or concerns regarding trade issues.

h. Documents Relating to Tobacco Farmers

Mr. Reed explains that:

the President, in his September 17, 1997 statement concerning the June 1997 proposed settlement between the states' Attorneys General and the tobacco industry, included "protection for tobacco farmers and their communities" as one of "the five key elements that must be at the heart of any national tobacco legislation." Thus, during its consideration of the June 1997 proposed settlement between the states and the tobacco companies and the McCain and related legislation, and continuing thereafter, the Executive Branch, including the White House (the DPC, the OVP, and sometimes the USTR), OMB, and the Department of Agriculture ("USDA") 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.

Reed Decl. at 55.

Joint Defendants make no specific arguments of need with respect to documents pertaining to tobacco farming, and make the miscellaneous argument that any Challenged Documents could be relevant to the affirmative equitable defenses. See generally Mot. App. B. The Special Master notes, however, that some documents in this section pertain to broader topics that Joint Defendants have addressed and have made more specific need arguments. Their contentions will be addressed infra as appropriate.

1. PRA078-0013-0015 [CD 32]

"This document consists of a string of four emails discussing a proposed agriculture bill, including proposals concerning tobacco export promotion assistance." Reed Decl. at 56; see also Gonzales Decl. Ex. A at 33. The emails are as follows: (a) October 10, 1998, from Mark A. Weatherly "to a large group of OMB employees providing Mr. Weatherly's insights into developments with regard to the proposed agriculture bill, including a discussion of a possible provision of the bill relating to tobacco export promotion assistance and the author's characterization of various senators' positions on the provision;" (b) October 10, 1998 from Mr. Weatherly to Lisa M. Kountoupes forwarding (a) and requesting additional information; (c) October 12, 1998 from Ms. Kountoupes to Lawrence J. Stein, Assistant to the President and Director of Legislative Affairs, WHO, EOP and Jessica L. Gibson, Special Assistant to the Director of Legislative Affairs, WHO, EOP, forwarding (a) and (b); and (d) October 12, 1998, from Ms. Gibson to Janet Murguia and Mindy E. Myers forwarding (a), (b), and (c). Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. The majority of the document addresses non-relevant farmer issues, with one portion relating to tobacco farmers: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The email provides updates and analysis of legislation pertaining to farmers, and is deliberative and predecisional in nature.

Joint Defendants argue that "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants." Mot. App. B at 16-17. The Special Master believes that the paragraph entitled "tobacco export promotion assistance" on page 0014 does relate to Joint Defendants' need arguments, and therefore recommends that the Court order Plaintiff to produce this paragraph to Joint Defendants notwithstanding Plaintiff's concerns regarding the future chilling effect that such a disclosure may have, as Joint Defendants' need outweighs Plaintiff's privilege interest in this case.

2. PRA078-0668-0676 [CD 75]

"This document consists two of October 10, 2000 emails discussing proposed legislation to aid burley tobacco growers." Reed Decl. at 56; see also Gonzales Decl. Ex.

The first is from John Winski "to a large group of White House and OMB employees, reporting the introduction of the proposed legislation and providing his analysis of the legislation and possible effects of its introduction." Id. The second is from Christina S. Ho to Mr. Winski, with copies to a large group of White House and OMB personnel, requesting a meeting to discuss the issues addressed in the first email. Id. Mr. Reed states that "[t]he other emails in this document are not responsive, having nothing to do with tobacco or smoking." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0673-0676, which contain only an unreadable hex dump. The Special Master further recommends that the Court overrule the presidential communications privilege claim as Plaintiff has not shown that this information was solicited and received by high level presidential advisors for the purpose of advising the President. The Special Master does believe that the deliberative process privilege applies to pages 0668-0672, which contain (twice) Mr. Winski's analysis of the burley tobacco grower legislation and the legislation itself. These pages are deliberative in nature, as Ms. Ho requests a meeting to discuss the issues raised. The Special Master does not believe that Joint Defendants have shown need for documents pertaining to tobacco farmer issues.

3. PRA078-0691-0691 [CD 76]

This document consists of two October 17, 2000 emails between Mark A. Weatherly and John Winski "discussing the possible effects of a change in crop assessments on tobacco purchases by tobacco companies. Both of the emails contain the authors' analysis of whether the proposed change in assessments would have any impact on tobacco purchases by tobacco companies." Reed Decl. at 57;see also Gonzales Decl. Ex. A at 33. Plaintiff claims the deliberative process privilege.

The Special Master believes that the privilege applies to these emails, which pose questions regarding tobacco assessments: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Such ruminations of government employees are deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for communications relating to tobacco farmer issues.

4. PRA078-0895-0895 [CD 87]

This document is a September 14, 2000 email from Andrea Kane "to a large group of White House and OMB personnel forwarding draft proposed questions and answers relating to a possible commission on tobacco farmers. The questions and answers were written in response to a request for guidance on the issue of a possible commission on tobacco farmers, and the email represents the suggestions of the EOP's Office of Policy Development for how to respond to press inquiries." Reed Decl. at 57; see also Gonzales Decl. Ex. A 33-34. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this draft press guidance, which was presented by Ms. Kane as a "suggest[ion]." Because it is recommendatory in nature, and suggests how to portray agency policy, it is both deliberative and predecisional. The Special Master does not believe that Joint Defendants have shown need for communications pertaining to tobacco farmer issues, particularly where, as here, they would have access to any final statements to the press.

5. PRA078-0905-0906 [CD 91]

"This document is a string of four September 14, 2000 emails and is a partial duplicate of Challenged Document 87. The first-in-time email is a duplicate of the draft questions and answers in Challenged Document 87, and the remaining emails forward the questions and answers to other employees in various components of the EOP for their review and comment." Reed Decl. at 57; see also Gonzales Decl. Ex. A at 34. Plaintiff claims the deliberative process privilege. Consistent with the recommendation for Challenged Document 87, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 91, notwithstanding Joint Defendants' claims of need.

6. PRA078-1131-1131 [CD 119]

"This document consists of two January 15, 1999 emails discussing draft proposed language for a statement on tobacco farmers to be made by the President." Reed Decl. at 58; see also Gonzales Decl. Ex. A at 34. The first email is from Cynthia A. Rice to Joshua Gotbaum, Victoria A. Wachino, and Thomas I. Freedman and "forwards draft proposed language for the statement and expresses the author's strategy in drafting the proposed language. The email also notes that the language was discussed with Elena Kagan," who is "a senior White House adviser." Id. The second-in-time email is from Ms. Wachino to Ms. Rice, Ms. Emmett, Mr. Freedman, and Joshua Gotbaum forwarding "edits to the proposed language, although the edits themselves are not included in the document." 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 as it reflects the solicitation by an immediate presidential adviser for feedback on a draft statement to be given by the President. The Special Master does not believe that Joint Defendants can show need to overcome the presumptive privilege as they have not shown need for documents pertaining to tobacco farmer issues, and as they have access to any final presidential statements.⁴⁴

44 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

7. PRA078-1155-1155 [CD 123]

"This document is a January 14, 1999 email from Charles M. Brain, Deputy Assistant to the President for Legislative Affairs (House), Legislative Affairs, WHO, EOP, to Michael Waldman, Assistant to the President and Director of Speechwriting, Communications, WHO, EOP, forwarding a January 13, 1999 email from Lisa M. Kountoupes, Special Assistant to the President for Legislative Affairs, WHO, EOP, to a large group of White House officials, proposing a possible statement by the President in the State of the Union Address about tobacco farmers and offering the reason for her proposal." Reed Decl. at 58; see also Gonzales Decl. Ex. A at 34. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege, as the document was solicited and received by high level presidential advisors in the course of their preparation of the State of the Union address. The Special Master does not believe that Joint Defendants have shown the requisite need for this document, particularly as they have not demonstrated the relevance of communications related to tobacco farmer issues, and as they have access to the final State of the Union address.⁴⁵

45 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

8. PRA078-1170-1170 [CD 125]

This document consists of three January 11, 1999 emails. The first is from "Jena V. Roscoe, Associate Director, Public Liaison, WHO, EOP, to Lisa A. Berg, Director of Scheduling and Advance for the Vice President, OVP; Stacie Spector, Deputy Assistant to the President and Deputy Director of Communications, WHO, EOP; and Robert B. Johnson, Deputy Assistant to the President And Deputy Director of Public Liaison, WHO, EOP; with a copy to Chandler G. Spaulding, Outreach Coordinator, Communications, WHO, EOP, discussing planning for a possible visit by the Vice President to Virginia, including tobacco farmers." Brown Decl. at [125]; see also Gonzales Decl. Ex. A at 34. The second is from Ms. Berg, forwarding the first to Ron Klain, Chief of Staff, OVP; Patricia Ewing, Deputy Chief of Staff for Communications, OVP; and Monica M. Dixon, Deputy Chief of Staff, Office of the Vice President, OVP. Id. The third is from "Mr. Klain to Ms. Berg, Ms. Roscoe, Ms. Spector, and Mr. Johnson, further discussing the planning for such a trip and offering his suggestions and instructions as to what should occur on that trip, including his reasons." 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. Here, the document does not address information that will be provided to the Vice President for use in his consultations with the President; instead, it addresses a trip that the Vice President will take and presidential decisionmaking does not appear to be a part of it. The Special Master does believe that the document is protected by the deliberative process privilege, as it addresses policy regarding the Vice President's visit: " 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 information, as they have not demonstrated the relevance of communications pertaining to tobacco farmers.

9. PRA078-1951-1953 [CD 171]

Plaintiff has released page 1951 to Joint Defendants, and maintains its claim of deliberative process privilege for the remainder, which is "a briefing paper providing background information on the burley tobacco situation." Reed Decl. at 58;see also Gonzales Decl. Ex. A at 35. Mr. Reed explains that the "briefing paper, although partly factual, also contains extensive characterization by and opinions of the author regarding the burley tobacco quota and Philip Morris' `Partnering Program.'"Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for pages 1952-1953, which contain analysis of the Partnering Program to which Mr. Reed refers: " 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 internal deliberations concerning tobacco farmer issues.

10. PRA078-2383-2383 [CD 187]

This document consists of three emails that address a request for information on the Vice President's position on Tennessee burley tobacco growers. Brown Decl at [187]; see also Gonzales Decl. Ex. A at 35. The first is dated May 17, 2000 and is from John Winski to David Beier, with a copy to Andrew Schneider, and "discusses the rights of Tennessee burley tobacco quota holders to transfer quota across county lines with the State and provides background information on this program necessary for the Vice President to form a position on this issue." Id. The second is dated May 18, 2000, is from Mr. Beier to Charles Burson, Chief of Staff and Counselor to the Vice President, OVP, and forwards the email described above; and the final email is also dated May 18, is from Mr. Burson to Rachel E. Sullivan, Deputy Counsel, Legal Counsel, OVP, and forwards the emails described above. Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master does not believe that the presidential communications privilege applies, as the communications are among high-level Vice-Presidential advisors for the purpose of advising the Vice President on developing policy, and not for the Vice-President's role in advising the President (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ."). The Special Master does believe that the document is protected by the deliberative process privilege, as it provides background information to assist in the Administration's policy deliberations. The Special Master also believes that Joint Defendants have not shown need for communications pertaining to tobacco farmer issues.

11. PRA171-0208-0208 [CD 246]

This document is a December 8, 1998 email from Thomas I. Freedman to Elena Kagan and Bruce N. Reed, with copies to Laura Emmett and Mary L. Smith "relaying a USDA request for guidance on the upcoming announcement on the tobacco quota. (`USDA and Secretary Glickman are wrestling with a difficult question they will have to answer early next week and are interested in getting our advice.') The email discusses in detail the various aspects of this difficult problem." Reed Decl. at 59; see also Gonzales Decl. Ex. A at 35. 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 email contains information solicited and received by high level presidential advisors in their duties of advising the President. Rather, the advice was sought by USDA and Secretary Glickman, and there is no mention of the Secretary advising the President on this matter. The Special Master does believe that the deliberative process privilege applies, as the email seeks guidance on the REDACTED . The Special Master further believes that Joint Defendants have not shown need for this document as they have not demonstrated the relevance of communications pertaining to tobacco farmers.

12. PRA171-0279-0280 [CD 253]

"This document consists of two January 7, 1998 emails discussing DPC follow-up on matters requiring further attention following a meeting between the President and small farmers." Reed Decl. at 59; see also Gonzales Decl. Ex. A at 35. The first is from Andrew Mayock, Senior Advisor for Public Liaison, WHO, EOP, to Elena Kagan, Thomas I. Freedman and Cynthia A. Rice, with copies to Barbara D. Woolley, Special Assistant to the President and Associate Director, Public Liaison, WHO, EOP, and Robert B. Johnson, "discussing outstanding issues that must be covered in preparation for a memo to the President updating him on these matters, including several relating to tobacco." Id. The second is from Ms. Rice to Diana Fortuna, Senior Policy Analyst, DPC, and Mr. Freedman, commenting on one aspect of the matters discussed in the first email that does not relate to tobacco. Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master believes that the presidential communications privilege applies to this document, as it seeks information to be used in briefing the President on small farmers, including issues relating to tobacco farmers. The Special Master does not believe that Joint Defendants have shown that issues relating to tobacco farmers are directly related to central issues at trial in order to overcome the presumptive privilege afforded these documents.⁴⁶

46 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

13. PRA171-0352-0353 [CD 256]

This document consists of three July 29, 1998 emails among Cynthia A. Rice and Patricia Kaeding, Associate Chief Counsel, FDA, HHS. The first is from "Ms. Kaeding to Ms. Rice with a suggested change to Senate tobacco legislation concerning tobacco farmers and the regulatory authority of the Secretary of Agriculture." Reed Decl. at 59; see also Gonzales Decl. Ex. A at 36. The second is from "Ms. Kaeding to Ms. Rice, with a further change to the proposal based upon additional information she obtained;" and the third is from Ms. Rice to Ms. Kaeding thanking her for the information in the prior two emails. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the deliberative process privilege claim, as the document reflects the give-and-take of the agency consultative process: (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED"). The discussions are therefore recommendatory and predecisional in nature. Moreover, the Special Master does not believe that Joint Defendants have shown the relevance of discussions pertaining to tobacco farmer issues.

14. PRA171-0371-0373 [CD 259]

This document is a November 7, 1997 email from Eric R. Biel, WHO, EOP, to Christopher F. Walker, WHO, EOP; Thomas I. Freedman; Peter Scher, Ambassador, Special Trade Negotiator, USTR; and Janelle F. Erickson, "transmitting and discussing a draft letter from the President to Rep. Etheridge concerning tobacco farmers and their communities." Reed Decl. at 60; see also Gonzales Decl. Ex. A at 36. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the presidential communications privilege. Although it appears that the attached letter is a final (" REDACTED REDACTED REDACTED"), the privilege applies to both predecisional and postdecisional presidential communications. In re Sealed Case, 121 F.3d at 745. The Special Master does not believe that Joint Defendants can overcome the presumptively privileged status afforded these communications, particularly as they have access to the final letter that was signed by the President, and as they have not demonstrated relevance of discussions related to tobacco farmers.⁴⁷

47 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

15. PRA171-0545-0545 [CD 274]

This document is an October 22, 1998 email from Thomas I. Freedman to Bruce N. Reed, with a copy to Mary L. Smith, "providing an update on tobacco farmer initiatives and his suggestion for further action in this area in response to a request from Mr. Reed, including seeking Mr. Reed's reaction to his suggestion." Reed Decl. at 60; see also Gonzales Decl. Ex. A at 36. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Freedman discusses the progress made on a request for 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 for communications relating to tobacco farmer issues as they have not demonstrated how such discussions are relevant to the claims and defenses in this action.

16. PRA171-1392-1394 [CD 301]

This document consists of two August 10, 2000 emails. The first is from John Winski to Andrea Kane "with a detailed draft memorandum concerning a proposed buyout of tobacco farmers, including a discussion of issues relating to that proposal (tobacco quotas, Philip Morris tobacco purchase, tobacco grower sentiment), arguments in favor of a buy-out, arguments against a buy-out, and a discussion of how much a buy-out would cost." Reed Decl. at 60; see also Gonzales Decl. Ex. A at 36. The second is from Ms. Kane to Thomas I. Freedman and Matthew Bennett forwarding the first "and noting that Mr. Winski seeks their assistance with respect to certain parts of his draft paper, and asking for guidance as to whether the White House should contact an outside organization for its opinion concerning the proposed buy-out." 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. Here, Mr. Winski seeks information to advise Vice President Gore, but there is no indication from the emails or from Plaintiff that the Vice President needed the information to advise the President. The privilege only applies where the communications are to the presidential advisor as part of his or her duties in advising the President. In re Sealed Case, 121 F.3d at 752.

The Special Master does believe that the document qualifies for protection under the deliberative process privilege, as Ms. Kane seeks information for Mr. Winski so that he may advise the Vice President: " REDACTED REDACTED REDACTED REDACTED REDACTED." The communications are therefore both deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need as they have not demonstrated that communications relating to tobacco farmers are relevant to the claims and defenses in this matter.

17. PRA171-1499-1499 [CD 306]

This document is a July 6, 2000 email from Thomas I. Freedman to J. Eric Gould with a copy to Andrea Kane "discussing the possible effects of eliminating the tobacco quota system and seeking guidance as to whether to involve a particular agency in obtaining more information about this." Reed Decl. at 61; see also Gonzales Decl. Ex. A at 36. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Freedman solicits information for use in policy deliberations: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The communication is therefore both deliberative and predecisional. The Special Master does not believe that Joint Defendants have shown need for this document as they have not demonstrated how information pertaining to tobacco farmers is relevant to the claims and defenses in this matter.

18. PRA171-1525-1531 [CD 309]

Plaintiff has released a portion of this document and maintains its claim of deliberative process privilege over the remainder, which is an August 10, 2000 email from Andrea Kane to John Winski "transmitting a statement concerning a proposed `Tobacco Roundtable Discussion between Tobacco Farmers and the Public Health Community,' and discussing a background paper on tobacco buy-out proposals (not part of this document)." Reed Decl. at 61;see also Gonzales Decl. Ex. A at 36-37. Mr. Reed explains that "[t]he attached proposal includes options for Presidential action in connection with the proposed roundtable." Id.

Plaintiff apparently has released pages 1526-1531, which contain the proposal described by Mr. Reed and an insert noting a hex dump. The Special Master recommends that the Court sustain the deliberative process privilege for page 1525, which discusses the proposal and seeks additional information: " REDACTED REDACTED REDACTED REDACTED." The Special Master further believes that Joint Defendants have not shown need for this document as they have not demonstrated the relevance of tobacco farmer issues to the claims and defenses in this matter.

19. PRA171-1574-1576 [CD 313]

Plaintiff has released a portion of this document (page 1574, containing an email distribution list), and continues to maintain its claims of deliberative process and presidential communications privileges for an April 8, 1998 email from Laura Emmett "to a large group of White House personnel transmitting a proposed statement concerning the President's meeting with Kentucky tobacco farmers on April 9, 1998 and a list of participants at that meeting with suggested questions for the President to ask of those participants." Reed Decl. at 61; see also Gonzales Decl. Ex. A at 37.

The Special Master recommends that the Court sustain the presidential communications privilege for pages 1575-1576, which contain drafts of the proposed roundtable and the Administration's statement regarding the meeting, and apparently were intended to advise the President. As such, they are presumptively privileged, and Joint Defendants have not shown that communications relating to tobacco farmer issues are directly relevant to any central issue in this case to overcome the privilege claim.⁴⁸

48 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

i. United States Trade Representative Documents

Plaintiff offers the Declaration of John K. Veroneau, General Counsel of the Office of the U.S. Trade Representative ("USTR"), in support of its claim of deliberative process privilege for Challenged Documents 1, 3, 4, and 390. Mr. Veroneau explains that the USTR, a component of the EOP, is led by the United States Trade Representative, a member of the President's Cabinet, and "the President's principal trade advisor, negotiator, and spokesperson on trade and related investment matters." Veroneu Decl. ¶ 2. USTR's responsibilities include "developing and coordinating U.S. international trade, commodity, and direct investment policy, and leading or directing negotiations with other countries on such matters." Id.

Mr. Veroneau states that the documents at issue here "were part of an Administration decision-making process for developing Administration trade policy regarding tobacco" and that "[t]he deliberations reflected in these documents are characteristic of those routinely undertaken within and among Executive Branch agencies to develop U.S. trade policies and positions." Id. ¶ 4. Mr. Veroneau further states that the disclosure of these documents "would inhibit the frank exchange of information and ideas between Executive Branch officials on sensitive trade policy matters." Id. He also asserts that there are no reasonably segregable factual portions as "the factual information included in the documents is interwoven with the documents' analytical and editorial content" and because "the inclusion of specific factual information in the document reveals the subjective judgment of the documents' author(s) regarding the relative importance of pertinent data, thus making the factual information an inextricable part of the documents' deliberative content." Id. ¶ 5.

Joint Defendants argue that, to the extent the Challenged Documents "review or discuss trade policies that are different from domestic tobacco policy or comment on why domestic and export policies should, may, or do differ, they may reflect evidence that refutes Plaintiff's allegations against Joint Defendants. For example, those documents likely reflect Plaintiff's longstanding policy of balancing health consequences associated with the interest in boosting the economy and collecting billions of dollars in revenues from international trade." Mot. App. B at 16.

1. PRA049-0470-0473 [CD 1]

This document is a June 7, 1994 draft letter from Ambassador Michael Kantor, United States Trade Representative, to Representative Martin Lancaster "responding to Representative Lancaster's letter discussing the benefits of U.S. tobacco exports and encouraging USTR to be more aggressive in opening foreign markets to U.S. tobacco products." Veroneau Decl. at [1]. Mr. Veroneau explains that, "[i]n this draft letter, Ambassador Kantor discusses the interplay between health and tobacco and describes the ongoing work of an interagency task force jointly chaired by USTR" and HHS. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this draft letter. As a draft, the correspondence reflects the opinions of agency employees, and not the policy of the agency. Joint Defendants assert that "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants. For example, those documents likely reflect Plaintiff's longstanding policy of balancing health consequences associated with the interest in boosting the economy and collecting billions of dollars in revenues from international trade." Mot. App. B at 16. While this document may be tangentially related to Joint Defendants' relevancy arguments, in light of the fact that they have access to any final version of this letter, the Special Master recommends that the Court sustain the privilege claim notwithstanding Joint Defendants' claimed need.

2. PRA055-0429-0429 [CD 3]

This document is an August 9, 1997 email from Sherman G. Boone to Jan McAlpine, Director for Multinational Trade and Environmental Policy, USTR, "transmitting draft guidelines (not included in the document) to be shared with the tobacco working group and giving his views as to the consensus of the tobacco working group as to what position/approach the international subgroup should take with respect to proposed tobacco legislation." Veroneau Decl. at [3]. Mr. Veroneau asserts that the "document is part of the ongoing Administration effort to develop positions/policies concerning tobacco products and, specifically, the promotion of the export and overseas sale of U.S. tobacco products." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, Mr. Boone provides draft guidelines that are preliminary and have not been widely distributed (" REDACTED REDACTED REDACTED REDACTED "), as well as Mr. Boone's impressions from a meeting on the issue (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED.").

Joint Defendants argue that "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants." Mot. App. B at 16. The Special Master has reviewed the document and finds that the discussions do not reflect arguments that export policies should, may or do differ from domestic policies; REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Accordingly, Joint Defendants have not demonstrated the relevancy of this document to the claims and defenses of this case.

3. PRA056-0162-0162 [CD 4]

This document is a July 25, 1996 email from Jan McAlpine to Margaret Sullivan, Chief of Staff, USTR; Colleen McCarthy, Director of Scheduling, USTR; and Irving Williamson, Deputy General Counsel, USTR, "concerning possibly briefing Ambassador Charlene Barshevsky, United States Trade Representative, USTR, in preparation for a meeting with Donna Shalala, Secretary, HHS, concerning tobacco and cigarette policy." Veroneau Decl. at [4]. Mr. Veroneau explains that the email addresses "Ambassador Barshevsky's views as to whether she should meet with Secretary Shalala and, if so, when; it also discusses what further work should be done by and concerning the USTR/HHS task force on tobacco." Id. Mr. Veroneau notes that the email is clear on its face that a decision has not been made. Id. Plaintiff claims the deliberative process privilege.

The Special Master believes that the document qualifies for the privilege. Here, the email sets forth Ambassador Barshevsky's views on issues to discuss with Secretary Shalala, as well as how to proceed next: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The communication therefore is both deliberative and predecisional.

Joint Defendants argue that "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants." Mot. App. B at 16. In camera review reveals that the email does not contain such discussions; the Special Master therefore does not believe that Joint Defendants have demonstrated sufficient need to overcome Plaintiff's privilege claim.

4. PRA209-0023-0023 [CD 390]

This document consists of two emails. The first is dated February 27, 1998 and is from Jennifer R. Havercamp, Assistant U.S. Trade Representative for Environment and Natural Resources, USTR, to Peter Scher, Ambassador, Special Trade Negotiator, USTR, "and others within USTR who are not identified, reporting on a meeting at the White House with respect to how to respond to questions from Senator McCain concerning application of U.S. cigarette health labels to cigarette sales abroad, including different approaches suggested by different components/persons within the Administration." Veroneau Decl. at [390]. The second email is dated March 3, 1998, and is from Ambassador Scher to Ms. Havercamp, with copies to Rachel Shub, Associate General Counsel, OGC, USTR; Nicole Venable, Congressional Affairs Specialist, Congressional Affairs, USTR; Irving Williamson, Deputy General Counsel, USTR; and Jan McAlpine, "thanking Ms. Haverkamp for the update." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the document contains a summary of the DPC Tobacco Legislation Meeting, Ms. Havercamp's impressions of the meeting, and addresses the next steps that will take place: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

Joint Defendants argue that, "[i]f the document review[s] or discuss[es] trade policies that are different from domestic tobacco policy or comment[s] on why domestic and export policies should, may, or do differ, [it] may reflect evidence that refutes Plaintiff's allegations against Joint Defendants." Mot. App. B at 16-17. The Special Master believes that the communications in this document are relevant to Joint Defendants' valid need claims, and that such discussions are unavailable to Joint Defendants from other sources. The Special Master therefore recommends that the Court order Plaintiff to produce this document to Joint Defendants, notwithstanding Plaintiff's concerns regarding the future chill of agency communications, as Joint Defendants' need outweighs Plaintiff's privilege interest.

j. Office of the Vice President Documents

Plaintiff offers the Declaration of Elizabeth M. Brown, former Deputy Counsel (and later Counsel) to Vice President Gore, for this group of documents. Ms. Brown states that "[o]ne of the important matters on which Charles Burson, my predecessor as Counsel to the Vice President, and I together advised and assisted Vice President Gore was on legal issues relating to tobacco and health, including cigarette smoking." Brown Decl. ¶ 3. Ms. Brown further states that Vice President Gore directed her and other members of the staff to become involved in tobacco-related initiatives sponsored by the White House, and "report to him regularly concerning the Clinton/Gore Administration's tobacco programs as well as those undertaken by other departments within the Executive Branch . . ." Id.

Ms. Brown states that the documents at issue here "are representative of the various types of deliberative interactions that occur on a regular basis in the White House, the EOP and throughout the Executive Branch." Id. at ¶ 6. Ms. Brown contends that disclosure of these documents would inhibit the "frank and candid exchange of information and ideas among Executive Branch officials and staff" as these individuals believed that their candid comments and recommendations would be kept confidential and "could lead Executive Branch officials and staff to temper candor and thereby greatly impair the exchange of information and ideas among the White House, the EOP, and the other Executive Branch agencies." Id. at 12.

With respect to the presidential communications privilege, Ms. Brown notes that the "communications as to which the privilege is asserted involve senior White House advisers formally charged with providing advice and recommendations to the President and Vice President and their staffs; these advisors and their staff had broad and significant responsibility for formulating policy advice to be given to the President, and their communications were made or received in the process of gathering information to assist in making recommendations in order to assist the President in determining what legislation the Administration should propose." Id. at ¶ 9.

1. PRA078-0262-0262 [CD 58]

This document consists of three February 2, 1998 emails between Kay Casstevens, Director of Legislative Affairs for the Vice President, OVP, EOP, and Toby Donenfeld "relating to a planned discussion of the Vice President's legislative priorities." Brown Decl. at [58]; see also Gonzales Decl. Ex. A at 6. Ms. Brown states that "[t]he emails identify specific issues that are legislative priorities for the Vice President, including tobacco, and they were written by employees in the Office of the Vice President in connection with their responsibility to gather information to assist and advise the Vice President in developing and articulating the Clinton Administration's position on legislative matters. The subject of tobacco legislation was an official matter on which the Vice President directly advised the President." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Here, the communications seek to set up a meeting to discuss the legislative policies of the Vice President, however, while the Vice President would advise the President on "[t]he subject of tobacco legislation," there is no indication from Plaintiff or from the content of the emails that this information would be used by the Vice President to formulate advice to the President, which is the purpose of the presidential communications privilege. The Special Master further recommends that the Court sustain the deliberative process privilege, as the email seeks guidance regarding particular policy issues that Ms. Casstevens wanted to discuss: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED)." The Special Master does not believe that Joint Defendants have demonstrated need for a document which discusses the need to set up a meeting to discuss the Vice President's legislative priorities.

2. PRA078-0315-0316 [CD 61]

This document consists of two March 13, 1998 emails between Cynthia A. Rice and Toby Donenfeld. Mr. Gonzales explains that "[t]he emails discuss timing and strategy for the Administration's release of information on tobacco deaths by state. In addition, the email from Ms. Donenfeld to Ms. Rice seeks information and guidance in order to prepare the Vice President for an upcoming forum where he was to appear on behalf of the Administration. The email from Ms. Rice to Ms. Donenfeld provides the requested information and guidance, including background information on the Administration's legislative strategy and the author's opinion of the status of certain legislative efforts." Gonzales Decl. Ex. A at 6. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege, as this document does not solicit information to be used by a high-level presidential advisor for use in formulating advice for the President; rather, it seeks information to be used to advise the Vice President (" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."). The Special Master does believe that the deliberative process privilege applies, as the communications provide information to be used to brief the Vice President for policymaking decisions. The Special Master does not believe that Joint Defendants have shown need for this document, as they have not shown the relevance of communications to brief the Vice President regarding tobacco legislation.

3. PRA078-0422-0495 [CD 63]

This document consists of a string of emails forwarding and discussing a paper entitled "President Clinton and Vice President Gore's FY 2000 Budget: Preparing America for the 21st Century." Plaintiff has released the actual paper, and maintains claims of the deliberative process and presidential communications privileges for the emails, which include (a) an email from Robin J. Bachman, Associate Director, Research, Cabinet Affairs, WHO, EOP, to Lowell Weiss, Special Assistant to the President and Presidential Speechwriter, WHO, EOP, forwarding the paper; (b) from Ms. Bachman to Mr. Weiss, forwarding the documents that were received by Ms. Bachman on October 21, 1998; (c) from Ms. Bachman to Mr. Weiss forwarding documents received by Ms. Bachman on December 10, 1997; and (d) from Ms. Bachmann to Paul J. Richman, OVP, forwarding (a) — (c); and (e) from Mr. Richman to Paul J. Weinstein, forwarding (a) — (d) and seeking guidance. Brown Decl. at [63].

Plaintiff has released pages 0429-0495. Pages 0426-0428 contain email cc lists and routing information and are not substantive in nature. Page 0425 is the cover email for the document Plaintiff has released, and contains no more information than the released document; therefore it is not protected by the privileges. Pages 0423-0424 are ministerial in nature and also not protected. Finally, the Special Master believes that page 0422 is not deliberative in nature: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED "Moreover, the Special Master does not believe that the presidential communications privilege applies, as there is no indication that the information was solicited and received by a high level presidential advisor for the purpose of advising the President.

4. PRA078-2150-2150 [CD 180]

This document is an October 17, 2000 email from Mark A. Weatherly to John Winski, "with copies to a large group of White House personnel, that discusses a Burley and Flue-Cured Tobacco Legislation Proposal, including Mr. Weatherly's analysis of the effect of such proposal." Brown Decl. at [180]. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Weatherly describes an issue that arose with respect to the flue-cured tobacco legislation, and describes the action be taken by the Administration: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." Therefore, it is deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for communications relating to the flue-cured tobacco legislation, as they have not demonstrated that such information is relevant to claims and defenses in this matter.

5. PRA078-2151-2151 [CD 181]

This document is an October 17, 2000 email from Mark A. Weatherly to John Winski "that discusses the possible effects of a tobacco assessment on tobacco company tobacco purchases." Brown Decl. at [181]. Plaintiff claims the deliberative process privilege.

This document is actually a duplicate of Challenged Document 76. Consistent with the recommendation for Challenged Document 76, the Special Master recommends that the Court sustain the privilege claim, notwithstanding Joint Defendants' claim of need.

6. PRA078-2970-2971 [CD 220]

This document consists of two emails discussing Administration strategy for dealing with various issues, including tobacco issues. The first is dated March 30, 1998, and is from Patricia Ewing to Toby Donenfeld that, "relating to tobacco, addresses an unspecified Washington Post story on tobacco as well as the McCain bill and Kick butts day." Gonzales Decl. Ex. A at 10. The second is dated March 30, 1998 and is from Ms. Donenfeld to Ms. Ewing, that forwards the email described above and includes a request for further information. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege. Here, Ms. Ewing seeks information on behalf of Mr. Podesta, the President's Chief of Staff, and a high-level presidential advisor. There is nothing that demonstrates, however, that Mr. Podesta sought this information in order to advise the President and instead appears to be for the purpose of seeking a statement from the Vice President's office. In re Sealed Case, 121 F.3d at 752. The Special Master does believe that the deliberative process privilege applies, as Ms. Ewing suggests a course of action regarding Kick-Butts Day: " REDACTED REDACTED REDACTED ." Upon review of Joint Defendants' need arguments, the Special Master does not believe that Joint Defendants have shown need for this type of information.

7. PRA078-3100-3102 [CD 222]

"This document consists of four March 13, 1998 emails discussing and providing suggestions for an Administration tobacco strategy." Brown Decl. at [222]. The first is from Stacie Spector "to a large group of White House personnel, that substantively discusses a recent article in the New York Times entitled `New Cancer Cases Decreasing in U.S. as Deaths Do, Too,' and provides the author's view on how this article may be used by the Administration." Id. The second email is from Christa Robinson, forwarding the first email to Cynthia A. Rice. The third email is from Ms. Rice to the recipients of the first email, with copies to Bruce N. Reed and Elena Kagan, forwarding the prior emails and "offering personal suggestion on how this information may be used by the Vice President." Id. The final email is from Eli G. Attie to Thomas M. Rosshirt, Office of the Deputy Chief of Staff, Communications, OVP, and Toby Donenfeld, forwarding the emails described above. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 3100 and 3102, which contain only non-substantive communications and email distribution lists. Page 3101 contains the substantive portion of the email, which the Special Master believes qualifies for the privilege, as it analyzes the New York Times article and proposes possible use of it: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACT" The comment is recommendatory in nature and protected by the privilege. The Special Master further believes that Joint Defendants have not shown need for this document, as they have not shown the relevance of deliberations among employees in the Office of the Vice President on a publicly-available newspaper article.

8. PRA078-3145-3146 [CD 223]

This document is a March 19, 1998 email from Charles Burson to Donald H. Gips and Kay Casstevens, with a copy to Rachel E. Sullivan, "that discusses assignments for a follow-up on tobacco strategy and events, including proposed strategies that the Vice-President use[d] to further meet the Administration's tobacco goals." Gonzales Decl. Ex. A at 10. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege. Here, the document solicits information to be used to advise the Vice President, not the President. The Special Master does believe that the deliberative process privilege applies, as the document sets forth tasks to be completed and suggestions for Vice Presidential action. The Special Master further believes that Joint Defendants have not shown need for communications pertaining to activities and public appearances of the Vice President.

9. PRA171-0014-0015 [CD 239]

This document is a May 5, 1997 email from Toby Donenfeld to Donald H. Gips "reflecting internal Administration analysis on issues being considered in tobacco settlement negotiations as well as the author's views on settlement of the tobacco AG lawsuit and FDA authority to regulate." Brown Decl. at [239]. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Here, Ms. Donenfeld provides a factual update on tobacco settlement negotiations, which involved the states and not the Administration, and the email does not appear to be related to the formulation of Administration policy.

10. PRA171-0145-0145 [CD 245]

This document is a May 7, 1998 email from Sarah A. Bianchi to Melany Nakagiri "relaying concerns, including from the Department of Justice, about draft minority tobacco provisions in proposed legislation." 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 there is no indication that this information was solicited and received by a high-level presidential advisor in her role of advising the President. Instead, it appears to be more appropriately protected by the deliberative process privilege, insofar as it relays deliberations between agency employees regarding policy issues: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACT" The Special Master does not believe that Joint Defendants have shown need as they assert that deliberations relating to the use of revenues are relevant to their affirmative equitable defenses. As these defenses are no longer part of the case, the Special Master does not believe that there has not been a showing of need sufficient to justify overcoming Plaintiff's privilege claim.

k. Miscellaneous Executive Branch Documents

1. PRA078-0290-0292 [CD 59]

"This document consists of a string of six September 27 — October 19, 1999 emails among a group of OVP personnel discussing possible involvement by the Vice President in various tobacco events, including discussion of the pros and cons of participating in a particular event and the possibility of developing an alternative approach to delivering the Administration's message." Brown Decl. at [59]; see also Gonzales Decl. Ex. A at 37. "The principal substantive emails in this document are: (a) September 27, 1999, Michael B. Feldman, Senior Advisor, Chief of Staff and Administration, OVP, to Amy Truly, and (b) October 5, 1999, Ms. Truly to Mr. Feldman." Id. Ms. Brown explains that the "communications took place among advisers to the Vice President who served as a direct adviser to the President on tobacco issues" and "were written in order to further the President's decision-making with respect to the manner in which the Administration should pursue support for its policy proposals regarding tobacco." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for page 0292, which essentially is blank. The Special Master further recommends that the Court overrule the presidential communications privilege for this document, as it does not contain information solicited and received by high-level presidential advisors in the course of advising the President; rather, the information was used to counsel advisers to the Vice President and, while the Vice President advised the President on tobacco matters, it does not appear that this information was used to advise the President. The Special Master does believe that the deliberative process privilege applies, as pages 0290-0291 discuss whether and how the Vice President should be involved in a proposed youth smoking education program. The Special Master does not believe that Joint Defendants have shown need for these communications, as they have not shown the relevance of discussions relating to appearances to be made by the Vice President to the claims and defenses in this matter.

2. PRA078-0944-0945 [CD 95]

This document is a March 12, 1999 email from Cynthia A. Rice to Laura Emmett and J. Eric Gould "forwarding draft questions and answers on the subject of investigations of tobacco companies by the Department of Justice." Reed Decl. at 62; see also Gonzales Decl. Ex. A at 37. Mr. Reed notes that "[t]he questions and answers forwarded by Ms. Rice are clearly labeled as drafts."Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0944, which contains only a non-substantive email and a hex dump. The Special Master further recommends that the Court sustain the privilege claim for page 0945, as these Q and As are in draft form, and, as such, represent the personal opinions of the employees and not the policy of the agency. The Special Master also does not believe that Joint Defendants have shown need for this document as the issues are of limited relevance, and as they have available to them any final versions of the Q and As.

3. PRA078-1101-1101 [CD 116]

This document is a May 13, 1999 email from Barry J. Toiv to Martha C. Foley "requesting guidance and instructions on a possible tobacco phone call." Reed Decl. at 62; see also Gonzales Decl. Ex. A at 37. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document. Mr. Toiv asks: " REDACTED REDACTED REDACTED." Plaintiff has provided no additional context for this email; the Special Master therefore believes that Plaintiff has not met its burden. Coastal States, 617 F.2d at 868.

4. PRA078-1270-1270 [CD 140]

This document is an April 8, 1998 email from Bruce N. Reed "to Chad Jenkins, OMB, relating a personal observation about a third person." Reed Decl. at 62; see also Gonzales Decl. Ex. A at 37. Mr. Reed explains that the "document, although containing a passing mention of tobacco, is not responsive." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. Here, while the document is personal, it does not appear to relate to the Administration's deliberative process: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDA In assessing the deliberative process privilege, "the key question . . . [is] whether the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussions within the agency and thereby undermine the agency's ability to perform its functions."Dudman Communications, 815 F.2d at 1568. The Special Master does not believe that danger exists vis-á-vis this document.

5. PRA078-1505-1511 [CD 149]

This document consists of three brief non-substantive August 8, 2000 emails among Anna Richter and WHO, EOP employees Alexander N. Gertsen, and Elliot J. Dieringer, "with an attached `internal use only' press guidance concerning `Reducing Tobacco Use: A Report of the Surgeon General.'" Reed Decl. at 62; see also Gonzales Decl. Ex. A at 38. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim. As Mr. Reed notes, the three emails on page 1505 are non-substantive. The attached document contains press guidance that, while for internal use, states Administration policy and is not deliberative or predecisional in nature.

6. PRA078-1595-1601 [CD 158]

This document is a November 28, 2000 email from Christina S. Ho to Andrea Kane "transmitting and discussing draft press guidance that CDC will be distributing concerning a study on lung cancer rates in California." Reed Decl. at 63; see also Gonzales Decl. Ex. A at 38. Plaintiff has released the majority of the document, but maintains its claim of deliberative process privilege to the final sentence on page 1595, which "contains the author's suggestion as to what should be done with the document that is transmitted with the email." Id.

The Special Master recommends that the Court sustain the claim of privilege for the final statement in Ms. Ho's email: " REDACTED REDACTED REDACTED REDACTED REDACTED ." This statement is predecisional and recommendatory in nature and does not explain Administration policy. The Special Master does not believe that Joint Defendants have shown need for this statement, as Joint Defendants already have access to the document which Ms. Ho discusses in the email.

7. PRA078-1710-1712 [CD 159]

"This document consists of four October 19, 2000 emails concerning HUD using economic development assistance to fund `smoke shops' that sell cheap cigarettes." Reed Decl. at 63; see also Gonzales Decl. Ex. A at 38. The first is from Andrea Kane "to a large group of White House and OMB personnel, seeking guidance concerning language in the HUD/VA appropriations bill dealing with this issue." The second is from "Ms. Kane to the same group of addressees, discussing changes in proposed legislative language relating to the issue and giving her opinion as to whether the more recent proposed language is acceptable to the Administration." Id. The third is from "Ms. Kane to the same group of addressees, relating HUD's concerns about the proposed language, as well as her further views about possibly changing the proposed language." Id. The final email is from Michael Deich to Margy Waller, Associate Director and Senior Advisor for Welfare and Working Families, DPC, forwarding the prior three emails. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1712, which appears to be a final Q and A which is no longer predecisional as it represents the final policy of the Administration. The Special Master believes that pages 1710-1711 qualify for the privilege as they discuss outstanding issues and propose a course of action. For example, Ms. Kane states, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have shown need for documents pertaining to the government's policy vis-á-vis smoke shops.

8. PRA078-2047-2050 [CD 179]

This document is a March 17, 2000 email from Kathleen M. Bialas, Department of Housing and Urban Development ("HUD") to J. Eric Gould, "with a copy to Douglas S. Kantor, HUD, that transmits the attached Confidential discussion draft titled `Policy Issues Regarding the Use of Federal Programs to Assist For-Profit Businesses that Manufacture, Distribute, or Sell Tobacco Products.'" Reed Decl. at 63; see also Gonzales Decl. at 38. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 2047, which contains only a forwarding email and a hex dump. The Special Master further believes that the confidential discussion draft qualifies for the privilege as it sets forth issues to be considered, including substantive programmatic issues. It is deliberative and predecisional in nature.

The Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. Discussions regarding whether or not to provide federal financial assistance to businesses manufacturing, distributing, or selling tobacco products are relevant to the claims and defenses in this matter. The document is not particularly personal in nature, nor does it identify any particular employees, therefore the danger of future chill is not, in the opinion of the Special Master, particularly strong. The Special Master therefore recommends that the Court order Plaintiff to produce the document to Joint Defendants.

9. PRA078-2966-2967 [CD 218]

"This document consists of two emails discussing a possible op/ed on tobacco." Reed Decl. at 64; see also Gonzales Decl. Ex. A at 38. The first is dated March 31, 1998, and is from Maria Echaveste, Assistant to the President and Deputy Chief of Staff, WHO, EOP, to Christopher Jennings and Elena Kagan, "with copies to a group of White House personnel, that discusses the Administration's potential strategies on energizing certain communities to support the Administration's policies on tobacco."Id. The second is also dated March 31, 1998, and is from James Alexander, HHS, to Estela A. Mendoza, Assistant Press Secretary for Specialty Press, WHO, EOP, with a copy to Laurie Boeder, HHS, that forwards the email described above and provides additional information necessary to consider when formulating an Administration strategy. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, the first email proposes: " REDACTED REDACTED REDACTED REDACTED ." Mr. Alexander responds, " REDACTED REDACTED REDACTED." It is therefore both deliberative and predecisional in nature. Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses,see Mot. App. B at 26, however, these defenses are no longer a part of this case, therefore Joint Defendants have not shown need for documents pertaining to policy regarding media events.

10. PRA171-0254-0254 [CD 251]

This document is a September 10, 1998 email from Cynthia A. Rice to Cynthia Dailard "with a draft weekly report to the President on tobacco concerning a study on smokers' quitting rates (published in the New England Journal of Medicine) and discussing efforts by the Administration to assist Government employees who seek to quit smoking." Reed Decl at 64; see also 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 for this document, which is a draft of a report to be delivered to the President. Joint Defendants have not shown that this document is directly relevant to a central issue in this case, and therefore have not made the requisite showing to overcome the presumptive privilege for this document.⁴⁹

49 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

11. PRA171-0331-0331 [CD 255]

This document is an April 29, 1999 email from Elizabeth Drye to Bruce N. Reed "relating her views, along with those of HHS and Jennifer M. O'Connor, Office of the Chief of Staff, WHO, EOP, about a tobacco/smoking idea (not identified)." Reed Decl. at 64;see also Gonzales Decl. Ex. A at 39. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for this document. Ms. Drye states, " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The subject line of the email is "smoking," but, because the email would not reveal agency deliberations or agency policy, the deliberative process privilege does not apply.

12. PRA171-0439-0439 [CD 264]

This document is a March 13, 1998 email from Christa Robinson, Associate Director for Communications and Events, DPC, to Cynthia A. Rice forwarding a March 13, 1998 email from Stacie Spector "to a large group of personnel, suggesting a use by the Administration of smoking data as published in an article that day in the New York Times." Reed Decl. at 65; see also Gonzales Decl. Ex. A at 39. Plaintiff claims the deliberative process privilege.

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

13. PRA171-0445-0456 [CD 265]

"This document consists of a string of four May 4, 1998 emails transmitting and discussing questions and answers regarding the Surgeon General's Report on Minority Tobacco Use." Reed Decl. at 65; see also Gonzales Decl. Ex. A at 39. Plaintiff has released a portion of this document, but maintains its claim of deliberative process privilege for two emails. The first is from Laura Emmett to Nelson Reyneri, Special Assistant to the Chief of Staff, WHO, EOP, Cynthia A. Rice, and Cynthia Dailard, "transmitting the questions and answers and directing the recipients to particular portions of the questions and answers on which she seeks further guidance;" and the second is from Mr. Reyneri to Ms. Emmett, Ms. Rice, and Ms Dailard, responding to the first "and describing information that Mr. Reyneri believes should be added to the questions and answers." Id.

Plaintiff has released pages 0447-0456, but maintains the privilege claim for pages 0445-0446. The Special Master recommends that the Court overrule the privilege claim for these pages, as they are so vague as to not reveal the government's deliberations.

14. PRA171-0787-0787 [CD 281]

This document consists of two October 15, 1997 emails. The first is from Bruce N. Reed to Thomas I. Freedman, Elena Kagan, and Jerold R. Mande, "relaying an AMA (American Medical Association) suggestion for an Executive Order that would apply youth access restrictions to federal facilities, including military bases and hospitals, and requesting that Mr. Mande look into how the Administration could follow up on this." Reed Decl. at 65; see also Gonzales Decl. Ex. A at 39. The second is from "Mr. Mande to Mr. Reed, with copies to Mr. Freedman and Ms. Kagan, reporting on conversations with DoD and internal decisions made by DoD on internal guidance to be provided to DoD's component services." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. Here, Mr. Reed requests information for deliberations regarding a proposed Executive Order: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." Mr. Mande provides information to Mr. Reed in response to that question. As such, the communications were made for the purpose of soliciting and receiving information and opinion to be used in advising the President regarding the proposed Executive Order. The Special Master further believes that Joint Defendants have not demonstrated that communications relating to issues such as this are directly relevant to issues that will be central at trial.⁵⁰

50 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

15. PRA171-1282-1283 [CD 300]

This document is a June 23, 2000 email from Barbara Chow to Bruce N. Reed, "providing an internal report and update on developments on various issues, including tobacco, and including an analysis of those developments." Reed Decl. at 66; see also Gonzales Decl. Ex. A at 40. Mr. Reed notes that "[m]ost of this document is non-responsive." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege claim, as there is no indication that Mr. Reed received this information in order to formulate advice for the President. Rather, it is a weekly update. The Special Master does believe that the deliberative process privilege applies, as the document conveys to Mr. Reed Administration policymaking actions over the past week. The Special Master does not believe that Joint Defendants have shown need for this document particularly as the majority of it is non-responsive.

16. PRA171-1415-1420 [CD 302]

"This document is an August 3, 2000 draft edited welfare/families initiatives report, with a section discussing upcoming tobacco-related events — the World Conference on Tobacco (Presidential message); upcoming Surgeon General's report on Reducing Tobacco Use; and tobacco/roundtable discussion between farmers and the public health community." Reed Decl. at 66; see also Gonzales Decl. Ex. A at 40. Mr. Reed explains that "[t]he greater part of this draft document concerns other nonresponsive matters." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim, as the document is a draft and reflective of the opinions of agency employees and not the policy of the Administration. The Special Master further believes that Joint Defendants have not shown need for this document; because they have access to any final version of this document, they have not shown justification to overcome Plaintiff's privilege interest in the draft.

17. PRA171-1458-1468 [CD 304]

This document is an October 4, 2000 email from Molly O'Malley to Andrea Kane and Christina S. Ho "forwarding draft testimony of Surgeon General David Satcher before the Senate Commerce Committee concerning the Surgeon General's report on `Reducing Tobacco Use,' with OMB comments on that draft testimony." Reed Decl. at 66; see also Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 1458, which contains a non-deliberative email and an unreadable hex dump, and for page 1459, which essentially is a blank page. The Special Master recommends that the Court sustain the privilege claim for pages 1460-1468, which contain Dr. Satcher's draft testimony and, as a draft, is preliminary and predecisional in nature. The Special Master does not believe that Joint Defendants' need for this information outweighs Plaintiff's privilege claim; Joint Defendants have access to the final version of the testimony and have not demonstrated independent need for the preliminary version.

18. PRA171-1724-1724 [CD 322A]

This document consists of two April 7, 1999 emails. The first is from Mickey Ibarra to Cynthia A. Rice, with copies to Moe Vela, Chief Financial Officer, Chief of Staff and Administration, OVP; Maria E. Soto, Special Assistant to the Director, Intergovernmental Affairs, WHO, EOP; Janet Murguia; and Maritza Rivera, Associate Director, Public Liaison, WHO, EOP, "reporting on a conversation he had with the chair of the U.S. Hispanic Chamber of Commerce and seeking guidance and information to provide to that person." Reed Decl. at 66-67; see also Gonzales Decl. Ex. A at 40. The second is from Mindy E. Myers, forwarding the first to Caroline R. Fredrickson and Lisa M. Kountoupes. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim. Here, Mr. Ibarra informs Ms. Rice and the other recipients that 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 information pertaining to communications between agency employees and members of consumer and business groups relating to tobacco.

19. PRA172-0424-0424 [CD 331]

This document is a January 1, 1999 email from Devorah R. Adler to Cynthia M. Smith "suggesting an edit to a statement to be made concerning a grant program and its relation to EPA's efforts to reduce children's exposure to ETS." Reed Decl. at 67; see also Gonzales Decl. Ex. A at 40. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, Ms. Adler proposes a sentence to be added to the statement: "

REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." As a recommendation to a draft, it is deliberative and predecisional in nature. Moreover, the Special Master does not believe that Joint Defendants have shown need for a onesentence proposed addition to a statement on ETS to justify overcoming Plaintiff's privilege claim.

20. PTA172-2502-2503 [CD 335]

"This document is an email from Brian Murphy, WHO, EOP, to a large group of White House personnel transmitting a March 25, 1998 memorandum for the Chiefs of Staff from Lisa Levin, Special Assistant to the Deputy Press Secretary, WHO, EOP." Reed Decl. at 67; see also Gonzales Decl. Ex. A at 40-41. Mr. Reed explains that "[t]he memorandum requests that certain information regarding upcoming activities be submitted to the chief of staff," and notes that most of the memorandum relates to other topics and "[t]he portion of the memorandum relating to tobacco requests that agencies provide certain information to the Chief of Staff regarding implementation of an executive order relating to environmental tobacco smoke." Id. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the presidential communications privilege. Here, the communications were transmitted to the Chiefs of Staff outside of the Executive Branch. For example, the portion relevant to tobacco matters asked the chiefs of staff to REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED. Communications outside the Executive Branch cannot be protected by the presidential communications privilege. In re Sealed Case, 121 F.3d at 752. Other portions of the email inform the chiefs of staff of different information items, including REDACTED REDACTED REDACTED REDACTED , and are not deliberative or predecisional in nature. The Special Master therefore recommends that the Court overrule the deliberative process privilege claim as well.

21. PRA201-0206-0209 [CD 340]

This document consists of three emails. The first is dated December 14, 1998, and is from Frank J. Seidl, III to Daniel N. Mendelson and Joshua Gotbaum, "with copies to a large group of OMB personnel, transmitting and discussing OMB's estimate of tobacco-related costs for the Federal Employees Health Benefits program (the table and accompanying summary are not part of this document) and discussing possible uses for additional tobacco revenues should the Federal Government receive such." Locke Decl. at 48. The second is dated December 14, 1998, and is from Barry T. Clendenin forwarding the first email to William G. White and Mark E. Miller; and the third is from Mr. Miller to Mr. Seidl, with copies to Mr. White, Anne E. Tumlinson, and Richard J. Turman, forwarding the first two emails and asking that Mr. White and he be included in discussions such as that in the first email. Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0206-0207, which contain only document identification numbers and no substantive information, and for page 0208, which contains only non-substantive emails. The Special Master recommends that the Court sustain the privilege claim for page 0209, in which Mr. Seidl notes new estimates for REDACTED REDACTED REDACTED REDACTED REDACTED ." Mr. Seidl notes that" REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDAC" The email is therefore both deliberative and predecisional. Joint Defendants' need arguments with respect to the impact and use of tobacco revenues all relate to their now-dismissed affirmative defenses; the Special Master therefore does not believe that Joint Defendants have shown need for this document.

22. PRA203-0844-0845 [CD 381]

This document consists of three March 15, 2000 emails. The first is from Daniel N. Mendelson to Jeanne Lambrew, with copies to Cynthia A. Rice, Barry T. Clendenin, Thomas Reilly, and Joshua Gotbaum, "relating discussions with an outside organization and suggesting that Mr. Gotbaum meet with that organization." Locke Decl. at 48. The second is from Ms. Rice to Ms. Lambrew, Mr. Clendenin, Mr. Reilly, Mr. Gotbaum, and Michael Deich, "with further information about that organization and mentioning two tobacco-related issues in Congress that will require attention by the Administration (funding for the Federal tobacco lawsuit and legislative strategy on FDA regulatory authority over tobacco)." Id. at 48-49. The third is from Mr. Reilly forwarding the first two emails to Frank J. Seidl, III, Matthew Vaeth, III, Program Examiner, Health/Personnel, OMB, Mark E. Miller, and Andrew J. Scott. Id. at 49. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for this document. Here, the email contains a discussion and suggestions regarding how to proceed regarding certain legislation of importance to the Campaign for Tobacco Free Kids: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED." The emails are therefore both deliberative and predecisional. The Special Master does not believe that Joint Defendants have shown need for internal Administration discussions regarding working with certain legislative proposals with outside groups.

23. PRA213-0214-0219 [CD 395]

This document consists of two July 13, 1998 emails. The first is from Frank J. Seidl, III to Joshua Gotbaum and Daniel N. Mendelson, with copies to Richard J. Turman, Melany Nakagiri, Lourdes M. Lamela, Jim Esquea, and Marc Garufi, "discussing a proposal for the President to create a tobacco document depository/index, including summarizing the plan as proposed and agency concerns with that proposal, and presenting various alternatives and recommendations with respect to that proposal;" and the second is from Mr. Turman forwarding the first to Barry T. Clendenin. Locke Decl. at 49; see also Gonzales Decl. Ex. A at 41. Plaintiff claims the deliberative process and presidential communications privileges.

The Special Master recommends that the Court overrule the privilege claims for pages 0214-0215, which contain only document identification numbers and no substantive information. The Special Master does believe that the remainder of the document, pages 0216-0219 is protected by the presidential communications privilege, as it contain a proposal for consideration by the President: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED ." The Special Master does not believe that Joint Defendants have demonstrated need for this presumptively-privileged document, as they have not shown that communications relating to a federal tobacco document depository are directly relevant to a central issue in this case.⁵¹

51 As the Special Master has determined that the presidential communications privilege applies, there is no need to address Plaintiff's deliberative process privilege claim. See In re Sealed Case, 121 F.3d at 746.

24. PRA214-0013-0015 [CD 399]

This document is a February 25, 1993 email from Steven H. Semenuk to Pamela B. VanWie, Program Examiner, Labor Branch, Human Resources Division, OMB, "with information/analysis preparatory to a meeting with OSHA later that day." Locke Decl. at 49. Mr. Locke explains that "[t]he email includes a report on OSHA's current thinking with respect to what it should do with respect to regulating environmental tobacco smoke in the workplace." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0013-0014, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for page 0015, which contains an update on policy regarding OSHA action: " REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED REDACTED."

Joint Defendants argue that, "[t]o the extent this document contains discussions about whether to take action regarding ETS, whether ETS causes disease, or whether ETS exposure in the workplace is a problem worthy of national legislation or regulation, it is also relevant to Plaintiff's burden of proof and Joint Defendants' affirmative defenses." Mot. App. B at 5. The Special Master agrees, and recommends that the Court order Plaintiff to release this document to Joint Defendants as it is relevant to the claims in this matter, and as its disclosure is unlikely to chill future agency deliberations as the communications are not particularly candid or personal in nature.

25. PRA215-0115-0118 [CD 414]

This document is a May 12, 1999 email from Barry T. Clendenin to Thomas Reilly, forwarding an email of the same date from Frank J. Seidl, III to David Zavada, with copies to Stephen G. Elmore, Legislative Assistant, Legislative Reference Division, OMB; Mr. Clendenin; Richard J. Turman; Jeffrey A. Farkas; and Jennifer M. Forshey, "summarizing/analyzing a provision in the `Veterans Millennium Health Care Act' relating to receipt of recoveries from the Federal tobacco lawsuit, stating his section's position on that provision, and setting forth the basis for that position." Locke Decl. at 49-50. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for pages 0115-0116, which contain only document identification numbers and no substantive information. The Special Master further recommends that the Court sustain the privilege claim for pages 0117-0118, which contain Mr. Seidl's expression of his section's objections to the Veterans Millennium Health Care Act, and the reasons for those objections. The email is therefore deliberative and predecisional in nature. The Special Master does not believe that Joint Defendants have shown need for this document, as the discussions do not address the issue of whether smoking is a choice, as Joint Defendants have asserted with respect to communications regarding the VA.

26. PRA237-0126-0128 [CD 435]

"This document is an OMB internal paper entitled `Tobacco Discussion Outline; Deputy Director Briefing; June 17, 1998,' setting forth the staff's selection of topics (including some sub-topics) to be discussed at the briefing." Locke Decl. at 50. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0126, which contains only a document identification number and no substantive information. The Special Master further recommends that the Court overrule the privilege claim for pages 0127-0128, which contains factual, non-deliberative information with which to brief the Deputy Director (presumably of OMB).

27. PRA300-0227-0228 [CD 441]

This document consists of two July 12, 2001 emails. The first is from Rebecca A. Beynon, Attorney, Office of General Counsel, OMB, to Rosalyn J. Rettman, Associate General Counsel for Budget, OGC, OMB; Andrew J. Scott; Marc Garufi; Daniel LaPlaca, Program Examiner, VA/Personnel, OMB; Narahari Sastry, Program Examiner, VA/Personnel, OMB; and Michael Hickey, Program Examiner, Interior Branch, Natural Resources Division, OMB, "transmitting and briefly discussing OMB's section of a memo that DPC is putting together concerning the federal lawsuit." Locke Decl. at 50. Mr. Locke notes that "this paper is not part of the document" and that the email is "nonresponsive." Id. The second email is from Mr. Garufi to Thomas Reilly, Norris W. Cochran, Program Examiner, Health/Personnel, OMB, Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, and Judy C. Lin, Program Examiner, Health/Personnel, OMB, with copies to Barry T. Clendenin and Mr. Scott, forwarding the first and discussing a provision relating to the Foundation for NIH that causes concern for OMB's Health Division." Id. Plaintiff claims the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege claim for page 0228, which is blank. The Special Master believes that page 0227 qualifies for the privilege as it expresses concern about a provision of the OMB section of the document at issue, as it " REDACTED REDACTED REDACT" The Special Master does not believe that Joint Defendants have shown need for this document.

APPENDIX A

No. Bates No. Category Privilege(s) Recommended Ruling Need? Notes claimed ^st Category Legend: Settlement: Legislation: Recoupment: Youth Smoking: Synar Amend.: VA: International: Farmers: Misc.: USTR: OVP:

1 PRA049-0470-0473 USTR DP S no Veroneau Decl. 2 PRA055-0308-0309 DP n/a Privilege claim withdrawn (Veroneau Decl.) 3 PRA055-0429-0429 USTR DP S No Veroneau Decl. 4 PRA056-0162-0162 USTR DP S No Veroneau Decl. 5 PRA061-0010-0010 DP O n/a No Declaration provided in support of privilege claim 6 PRA061-0130-0131 Legislation DP S Yes Locke Decl. 7 PRA061-0286-0287 Legislation DP S Yes Locke Decl. 8 PRA061-1165-1166 Legislation DP S yes Locke Decl. 9 PRA061-1250-1253 Settlement DP S No Locke Decl. 10 PRA061-1259-1262 VA DP S No Locke Decl. 11 PRA061-1369-1369 Youth Smoking DP O n/a Locke Decl. 12 PRA061-1633-1637 Settlement DP DP: S: 1633-1635 No Locke Decl.; Pl. identifies PRA061-1633-1635 PC: S: 1636-1637 as CD 12, and PRA061-1636-1637 as CD 12A; Pl. claims PC for 12A (Gonzales Decl.) 14 PRA062-0317-0324 Legislation DP S No Locke Decl. 15 PRA062-0531-0531 VA DP O n/a Locke Decl. 16 PRA062-0532-0532 VA DP S No Locke Decl. 18 PRA062-0605-0606 VA DP S No Locke Decl. 19 PRA062-0614-0616 VA DP O: 0614; S: 0615-0616 No Locke Decl. 20 PRA062-0638-0640 VA DP S No Locke Decl.; Duplicate of portion of CD 10 21 PRA062-0647-0648 VA DP S No Locke Decl.; Copy of CD 18 (w/o handwritten notes) 22 PRA062-0649-0651 VA DP S No Locke Decl. 24 PRA062-0670-0670 VA DP S No Locke Decl.; Duplicate of portion of CD 19 26 PRA064-0023-0035 Youth Smoking DP O n/a Locke Decl.; Produced in redacted form (0023-0027 released) 27 PRA066-0236-0239 Legislation DP S: 0237-0239 No Locke Decl.; Released in part (page 0236 released) 28 PRA066-0468-0469 Youth Smoking DP S Yes Locke Decl. 30 PRA074-1140-1146 Legislation DP; PC PC: S No Reed/Gonzales Decls. 32 PRA078-0013-0015 Farmers DP S Yes — ¶ Reed/Gonzales Decls. on 0014 33 PRA078-0024-0026 Recoupment DP; PC O: 0026; PC S: 0024-0025 No Reed/Gonzales Decls. 41 PRA078-0055-0055 Recoupment DP; PC PC: S No Reed/Gonzales Decls. 47 PRA078-0078-0078 Legislation DP S No Reed/Gonzales Decls. 50 PRA078-0086-0088 Settlement DP O n/a Reed/Gonzales Decls.; Produced in redacted form; 0087-0088 released 52 PRA078-0093-0100 Recoupment DP; PC O: 0093 PC: S: 0094-0100 No Reed/Gonzales Decls. 54 PRA078-0119-0119 Legislation DP S No Reed/Gonzales Decls. 55 PRA078-0145-0148 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form 58 PRA078-0262-0262 OVP DP; PC PC: O; DP: S No Brown/Gonzales Decls. 59 PRA078-0290-0292 OVP DP; PC O: 0292; PC: O; DP: S: No Brown/Gonzales Decls. 0290-0291 60 PRA078-0300-0311 OVP/Youth DP; PC PC: O; DP: O: 0300-0301; No Brown/Gonzales Decls. Smoking S: 0302-0311 61 PRA078-0315-0316 OVP DP; PC PC: O; DP: S No Brown/Gonzales Decls. 63 PRA078-0422-0495 OVP DP; PC PC: O; DP: O n/a Brown Decl.; Produced in redacted form (0429-0495 released) 64 PRA078-0496-0499 Youth Smoking DP; PC PC: O; DP: O: 0499; S: Yes Reed/Gonzales Decls. 0496-0498 65 PRA078-0510-0517 Legislation DP; PC PC: O; DP: O: 0510-0512; no Reed/Gonzales Decls. 0517; S: 0513-0516 67 PRA078-0523-0523 Synar Amend. DP O n/a Reed/Gonzales Decls. 69 PRA078-0529-0533 Recoupment DP; PC PC: S No Reed/Gonzales Decls. 72 PRA078-0563-0579 Synar Amend. DP O: 0565; 0569; S: In part Reed/Gonzales Decls. 0563-0564; 0566-0568; 0573-0579 0570-0579 75 PRA078-0668-0676 Farmers DP; PC PC: O; DP: O: 0673-0676; No Reed/Gonzales Decls. S: 0668-0672 76 PRA078-0691-0691 Farmers DP S No Reed/Gonzales Decls. 81 PRA078-0807-0815 Synar Amend. DP S Yes Reed/Gonzales Decls. 84 PRA078-0825-0825 Youth Smoking DP; PC PC: S No Reed/Gonzales Decls. 87 PRA078-0895-0895 Farmers DP S No Reed/Gonzales Decls. 88 PRA078-0896-0896 DP O n/a No Declaration provided in support of privilege claim 91 PRA078-0905-0906 Farmers DP S No Reed/Gonzales Decls. 93 PRA078-0918-0918 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form 95 PRA078-0944-0945 Misc. DP O: 0944; S: 0945 No Reed/Gonzales Decls. 98 PRA078-0961-0961 DP; PC DP: O; PC: O n/a No Declaration provided in support of privilege claim 106 PRA078-1011-1011 Legislation DP S No Reed/Gonzales Decls. 107 PRA078-1012-1013 Youth Smoking DP S Yes Reed/Gonzales Decls. 108 PRA078-1016-1016 Legislation DP S No Reed/Gonzales Decls. 112 PRA078-1073-1074 Legislation DP; PC PC: S No Reed/Gonzales Decls. 113 PRA078-1086-1086 Legislation DP; PC PC: O; DP: S No Reed/Gonzales Decls. 114 PRA078-1093-1094 Legislation DP; PC DP: O; PC: O n/a Reed/Gonzales Decls. 116 PRA078-1101-1101 Misc. DP O n/a Reed/Gonzales Decls. 119 PRA078-1131-1131 Farmers DP; PC PC: S No Reed/Gonzales Decls. 120 PRA078-1132-1132 Recoupment DP S No Reed/Gonzales Decls. 121 PRA078-1133-1134 Recoupment DP S No Reed/Gonzales Decls. 122 PRA078-1142-1142 Recoupment DP; PC PC: S No Reed/Gonzales Decls. 123 PRA078-1155-1155 Farmers DP; PC PC: S No Reed/Gonzales Decls. 125 PRA078-1170-1170 OVP/Farmers DP; PC PC: O; DP: S No Brown/Gonzales Decls. 126 PRA078-1172-1172 Youth Smoking DP; PC PC: S — redaction No Reed/Gonzales Decls.; Produced in redacted form 127 PRA078-1174-1174 Synar Amend. DP O n/a Reed/Gonzales Decls. 128 PRA078-1176-1176 Youth Smoking DP O n/a Reed/Gonzales Decls. 129 PRA078-1179-1180 Youth Smoking DP O n/a Reed/Gonzales Decls. 130 PRA078-1182-1182 Legislation DP S No Reed/Gonzales Decls. 132 PRA078-1204-1205 Legislation DP; PC PC: S: 1204; O: 1205 No Reed/Gonzales Decls. 133 PRA078-1209-1209 Recoupment DP; PC PC: S No Reed/Gonzales Decls. 134 PRA078-1211-1211 Recoupment DP S Yes Reed/Gonzales Decls. 135 PRA078-1212-1213 Recoupment DP O n/a Reed/Gonzales Decls. 137 PRA078-1235-1235 Recoupment DP; PC PC: O; DP: O n/a Reed/Gonzales Decls. 138 PRA078-1236-1237 Recoupment DP S No Reed/Gonzales Decls. 139 PRA078-1267-1267 Youth Smoking DP; PC PC: S No Reed/Gonzales Decls. 140 PRA078-1270-1270 Misc. DP O n/a Reed/Gonzales Decls. 141 PRA078-1298-1298 Settlement DP S No Reed/Gonzales Decls. 142 PRA078-1306-1310 Youth Smoking DP S: 1306; O: 1307-1310 No Reed/Gonzales Decls. 143 PRA078-1317-1317 Legislation DP; PC PC: O; DP: S No Reed/Gonzales Decls. 144 PRA078-1360-1363 Youth Smoking DP; PC PC: S: 1360-1361 No Reed/Gonzales Decls.; Produced in redacted form; 1362-1363 released 147 PRA078-1421-1421 International DP S No Reed/Gonzales Decls. 148 PRA078-1422-1423 Youth Smoking DP; PC PC: O; DP: S Yes — Reed/Gonzales Decls. in part 1423 149 PRA078-1505-1511 Misc. DP O n/a Reed/Gonzales Decls. 151 PRA078-1529-1530 Youth Smoking DP S No Reed/Gonzales Decls. 152 PRA078-1533-1540 Youth Smoking DP O n/a Reed/Gonzales Decls. 155 PRA078-1580-1581 Youth Smoking DP S No Reed/Gonzales Decls. 157 PRA078-1591-1594 Legislation DP; PC PC: S No Reed/Gonzales Decls. 158 PRA078-1595-1601 Misc. DP S — redaction No Reed/Gonzales Decls.; Produced in redacted form; 1596-1601 and most of 1595 released 159 PRA078-1710-1712 Misc. DP S: 1710-1711; O: 1712 No Reed/Gonzales Decls.; Produced in redacted form 160 PRA078-1713-1715 Youth Smoking DP S: 1713-1714; O: 1715 No Reed/Gonzales Decls. 161 PRA078-1766-1767 Youth Smoking DP O n/a Reed/Gonzales Decls. 163 PRA078-1920-1922 Legislation DP S: 1920-1921; O: 1922 no Reed/Gonzales Decls. 164 PRA078-1923-1924 Legislation DP S: 1923; O: 1924 No Reed/Gonzales Decls. 165 PRA078-1925-1927 Youth Smoking DP O: 1925; S: 1926-1927 Yes Reed/Gonzales Decls. 166 PRA078-1928-1928 Youth Smoking DP S No Reed/Gonzales Decls. 167 PRA078-1929-1929 Youth Smoking DP S Yes Reed/Gonzales Decls. 168 PRA078-1930-1935 Youth Smoking DP O: 1931; S: 1930; Yes Reed/Gonzales Decls. 1932-1935 171 PRA078-1951-1953 Farmers DP S: 1952-1953 No Reed/Gonzales Decls.; Produced in redacted form (1951 released) 172 PRA078-1955-1957 Youth Smoking DP S No Reed/Gonzales Decls. 173 PRA078-1961-1962 Legislation DP O n/a Locke Decl. 175 PRA078-1964-1965 Recoupment DP S Yes Reed/Gonzales Decls. 176 PRA078-1966-1975 Youth Smoking DP S — redaction No Locke Decl.; Produced in redacted form (bottom of 1967 through 1975 released) 177 PRA078-2009-2011 Settlement DP S Yes Reed/Gonzales Decls. 179 PRA078-2047-2050 Misc. DP O: 2047; S: 2048-2050 Yes Reed/Gonzales Decls. 180 PRA078-2150-2150 OVP DP S No Brown Decl. 181 PRA078-2151-2151 OVP DP S No Brown Decl. 182 PRA078-2184-2184 Youth Smoking DP S No Reed/Gonzales Decls. 184 PRA078-2192-2200 Synar Amend. DP S Yes Reed/Gonzales Decls. 187 PRA078-2383-2383 OVP/Farmers DP; PC PC: O; DP: S No Brown/Gonzales Decls. 190 PRA078-2394-2394 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form 195 PRA078-2425-2429 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form 198 PRA078-2450-2451 International DP S No Reed/Gonzales Decls. 200 PRA078-2459-2460 International DP S: 2459; O: 2460 No Reed/Gonzales Decls. 203 PRA078-2493-2494 International DP S: 2493; O: 2494 No Reed/Gonzales Decls. 204 PRA078-2495-2498 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form; duplicate of CD 195 205 PRA078-2502-2506 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form; duplicate of CD 195 206 PRA078-2513-2513 International DP O n/a Reed/Gonzales Decls.; Produced in redacted form; duplicate of CD 195 209 PRA078-2591-2591 Settlement DP O n/a Reed/Gonzales Decls. 210 PRA078-2664-2669 Youth Smoking DP; PC O: 2664; PC: S: 2665- No Locke/Gonzales Decls. 2669 211 PRA078-2673-2675 Recoupment DP S Yes Reed/Gonzales Decls. 212 PRA078-2746-2762 Youth Smoking DP O: 2746-2747; S: 2748- Yes Reed/Gonzales Decls. 2762 213 PRA078-2763-2764 International DP S: 2763; O: 2764 No Reed/Gonzales Decls. 214 PRA078-2802-2808 Legislation DP; PC PC: O; DP: O n/a Reed/Gonzales Decls. 215 PRA078-2836-2837 Legislation DP O n/a Reed/Gonzales Decls. 216 PRA078-2850-2852 International DP S: 2850-2851; O: 2852 No Reed/Gonzales Decls. 217 PRA078-2859-2860 Legislation DP S No Reed/Gonzales Decls. 218 PRA078-2966-2967 Misc. DP S No Reed/Gonzales Decls. 220 PRA078-2970-2971 OVP DP; PC PC: O; DP: S No Brown/Gonzales Decls. 221 PRA078-3043-3045 Legislation DP O n/a Reed/Gonzales Decls. 222 PRA078-3100-3102 OVP DP S: 3101; O: 3100; 3102 No Brown Decl. 223 PRA078-3145-3146 OVP DP; PC PC: O; DP: S No Brown/Gonzales Decls. 227 PRA079-0688-0688 Legislation DP S No Reed/Gonzales Decls. 229 PRA079-4484-4484 Legislation DP; PC PC: S No Reed/Gonzales Decls. 230 PRA079-7423-7423 Legislation DP S No Reed/Gonzales Decls. 232 PRA090-4477-4478 Legislation DP S Yes Reed/Gonzales Decls. 233 PRA090-5423-5423 Legislation DP S Yes Reed/Gonzales Decls. 235 PRA092-3142-3142 Legislation DP O n/a Reed Decl. 236 PRA170-4024-4024 Legislation DP S No Reed/Gonzales Decls. 237 PRA170-4204-4207 Legislation DP S Yes Reed/Gonzales Decls. 238 PRA171-0003-0004 OVP/International DP; PC PC: S No Brown/Gonzales Decls. 239 PRA171-0014-0015 OVP DP O N/a Brown Decl. 240 PRA171-0098-0111 VA DP; PC O: 0098; PC: S: 0099- No Reed/Gonzales Decls. 0111 242 PRA171-0126-0134 Settlement DP; PC PC: S No Reed/Gonzales Decls. 243 PRA171-0136-0136 International DP S No Reed/Gonzales Decls. 245 PRA171-0145-0145 OVP DP; PC PC: O; DP: S No Brown/Gonzales Decls. 246 PRA171-0208-0208 Farmers DP; PC PC: O; DP: S No Reed/Gonzales Decls. 247 PRA171-0222-0222 Legislation DP S No Reed/Gonzales Decls. 248 PRA171-0241-0241 Recoupment DP S No Reed/Gonzales Decls. 249 PRA171-0245-0246 Legislation DP S Yes — Reed/Gonzales Decls. 0246 only 250 PRA171-0253-0253 Settlement DP O n/a Reed/Gonzales Decls. 251 PRA171-0254-0254 Misc. DP; PC PC: S No Reed/Gonzales Decls. 253 PRA171-0279-0280 Farmers DP; PC PC: S No Reed/Gonzales Decls. 254 PRA171-0288-0288 Recoupment DP S Yes Locke Decl. 255 PRA171-0331-0331 Misc. DP O n/a Reed/Gonzales Decls. 256 PRA171-0352-0353 Farmers DP S No Reed/Gonzales Decls. 257 PRA171-0355-0355 VA DP; PC PC: S No Reed/Gonzales Decls. 259 PRA171-0371-0373 Farmers DP; PC PC: S No Reed/Gonzales Decls. 263 PRA171-0415-0415 Legislation DP S No Reed/Gonzales Decls. 264 PRA171-0439-0439 Misc. DP S No Reed/Gonzales Decls.; Produced in redacted form; partial duplicate of 222 265 PRA171-0445-0456 Misc. DP O n/a Reed/Gonzales Decls.; Produced in redacted form; 0447-0456 released 266 PRA171-0474-0476 Legislation DP O n/a Reed/Gonzales Decls.; Produced in redacted form; 0475-0476 released 267 PRA171-0510-0510 International DP S No Reed/Gonzales Decls. 268 PRA171-0522-0524 Settlement DP S: 0524; O: 0522-0523 No Reed/Gonzales Decls. 269 PRA171-0526-0526 International DP S No Reed/Gonzales Decls. 270 PRA171-0528-0531 Legislation DP S No Reed/Gonzales Decls. 272 PRA171-0536-0536 Youth Smoking DP O n/a Reed/Gonzales Decls. 273 PRA171-0537-0537 Settlement DP O n/a Reed/Gonzales Decls. 274 PRA171-0545-0545 Farmers DP S No Reed/Gonzales Decls. 275 PRA171-0546-0546 Legislation DP O n/a Reed/Gonzales Decls. 276 PRA171-0548-0549 Settlement DP S No Reed/Gonzales Decls. 277 PRA171-0684-0685 Legislation DP; PC PC: S No Reed/Gonzales Decls. 278 PRA171-0767-0767 Legislation DP O n/a Reed/Gonzales Decls. 279 PRA171-0771-0771 Settlement DP S — redaction No Reed/Gonzales Decls.; Produced in redacted form 280 PRA171-0785-0785 Recoupment DP; PC PC: O; DP: S Yes Reed/Gonzales Decls. 281 PRA171-0787-0787 Misc. DP; PC PC: S No Reed/Gonzales Decls. 283 PRA171-0806-0806 DP O n/a No Declaration provided in support of privilege claim 284 PRA171-0838-0839 Legislation DP; PC PC: S No Gonzales Decl. 286 PRA171-0887-0889 Settlement DP S: 0887-0888; O: 0889 No Reed/Gonzales Decls. 287 PRA171-0890-0892 Legislation DP O n/a Reed/Gonzales Decls. 288 PRA171-0903-0903 Legislation DP S No Reed/Gonzales Decls. 290 PRA171-0965-0965 Legislation DP O n/a Locke Decl. 291 PRA171-0996-0997 Legislation DP S No Locke Decl. 292 PRA171-1002-1003 Legislation DP; PC PC: S No Reed/Gonzales Decls. 293 PRA171-1020-1020 Legislation DP O n/a Reed/Gonzales Decls. 297 PRA171-1207-1224 Legislation DP O n/a Reed/Gonzales Decls. 299 PRA171-1266-1266 International DP S No Reed/Gonzales Decls. 300 PRA171-1282-1283 Misc. DP; PC PC: O; DP: S No Reed/Gonzales Decls. 301 PRA171-1392-1394 Farmers DP; PC PC: O; DP: S No Reed/Gonzales Decls. 302 PRA171-1415-1420 Misc. DP S No Reed/Gonzales Decls. 303 PRA171-1451-1457 Legislation DP S: 1451-1452 No Reed/Gonzales Decls.; Produced in redacted form: portion of 1452 released; 1453-1457 released 304 PRA171-1458-1468 Misc. DP O: 1458-1459; S: 1460- No Reed/Gonzales Decls. 1468 305 PRA171-1490-1490 Legislation DP S No Reed/Gonzales Decls. 306 PRA171-1499-1499 Farmers DP S No Reed/Gonzales Decls. 307 PRA171-1508-1510 Legislation DP S No Reed/Gonzales Decls.; Produced in redacted form 308 PRA171-1511-1516 Legislation DP S No Reed/Gonzales Decls.; Produced in redacted form; included within CD 303 309 PRA171-1525-1531 Farmers DP S: 1525 No Reed/Gonzales Decls.; Produced in redacted form; 1526-1531 released 311 PRA171-1549-1562 Legislation DP S: 1549-1550; O: 1551- No Locke Decl. 1562 312 PRA171-1565-1570 Legislation DP O n/a Locke Decl. 313 PRA171-1574-1576 Farmers DP; PC PC: S: 1575-1576 No Reed/Gonzales Decls.; Produced in redacted form; 1574 released 321 PRA171-1699-1701 Recoupment DP; PC PC: O; DP: O n/a Reed/Gonzales Decls. 322 PRA171-1704-1724 Legislation DP O: 1704-1723 No Reed/Gonzales Decls.; Pl. claims page S: 1724 1724 separately as CD 322A (Misc.) 326 PRA171-1780-1780 Recoupment DP O N/a Reed/Gonzales Decls. 329 PRA171-1802-1802 Legislation DP; PC PC: O; DP: S No Reed/Gonzales Decls. 331 PRA172-0424-0424 Misc. DP S No Reed/Gonzales Decls. 333 PRA172-2345-2345 Settlement DP S No Reed/Gonzales Decls. 334 PRA172-2348-2348 Settlement DP S No Reed/Gonzales Decls. 335 PRA172-2502-2503 Misc. DP; PC DP: O; PC: O n/a Reed/Gonzales Decls. 336 PRA179-1347-1376 DP; PC DP: O; PC: O n/a No Declaration provided in support of privilege claims 338 PRA201-0133-0136 Recoupment DP O: 0133-0134; S: 0135- No Locke Decl. 0136 339 PRA201-0201-0205 Settlement DP O: 0201-0203; 0205; S: No Locke Decl. 0204 340 PRA201-0206-0209 Misc. DP O: 0206-0208; S: 0209 No Locke Decl. 341 PRA201-0283-0283 Settlement DP O n/a Locke Decl. 342 PRA201-0914-0916 Youth Smoking DP O n/a Locke Decl. 344 PRA201-1130-1132 Legislation DP O: 1130-1131; S: 1132 No Locke Decl. 345 PRA201-1325-1327 Legislation DP O: 1325-1326; S: 1327 No Locke Decl. 346 PRA201-1370-1372 Legislation DP O: 1370; 1372; S: 1371 No Locke Decl.; Partial duplicate of CD 345 347 PRA201-1372-1375 Legislation DP O: 1372-1374; S: 1375 No Locke Decl. 348 PRA202-0082-0084 VA DP O: 0082-0083; S: 0084 No Locke Decl. 349 PRA202-0085-0088 Settlement DP; AC DP/AC: S: 0087-0088; n/a Locke Decl. DP/AC: O: 0085-0086 350 PRA202-0089-0091 Settlement DP O: 0089-0090; S: 0091 No Locke Decl. 352 PRA202-0102-0105 Settlement DP; AC DP/AC: O: 0102-0103; n/a Locke Decl.; Partial duplicate of CD 349 DP/AC: S: 0104-0105 353 PRA202-0106-0109 Settlement DP; AC DP/AC: O: 0106-0107; n/a Locke Decl.; Partial duplicate of CD 349 DP/AC: S: 0108-0109 354 PRA202-0116-0119 Settlement DP O: 0116-0117; S: 0118- No Locke Decl. 0119 355 PRA202-0232-0234 Settlement DP O n/a Locke Decl. 356 PRA202-0249-0252 Settlement DP O: 0249-0250; 0252; S: No Locke Decl. 0251 357 PRA202-0253-0255 Settlement DP O: 0253; S: 0254-0255 No Locke Decl. 358 PRA202-0259-0262 Settlement DP O: 0259-0260; S: 0261- No Locke Decl. 0262 360 PRA202-0270-0272 Settlement DP O: 0270-0271; S: 0272 No Locke Decl. 361 PRA202-0273-0276 Settlement DP; AC; AW: O; DP/AC: S: n/a Locke Decl. AW 0275-0276; DP/AC: O: 0273-0274 362 PRA202-0291-0294 Settlement DP; AC; AC/AW: O; DP: S: No Locke Decl. AW 0293-0294; O: 0291-0292 363 PRA202-0295-0298 Settlement DP; AC; AW/AC: O; DP: O: No Locke Decl. AW 0295-0296; S: 0297-0298 364 PRA202-0332-0336 Settlement DP O: 0332-0333; S: 0334- No Locke Decl. 0336 365 PRA202-0337-0340 Settlement DP O: 0337-0338; DP: S: No Locke Decl. 0339-0340 366 PRA202-0357-0361 Settlement DP O: 0357-0358; 0361; S: No Locke Decl.; Partial duplicate of CD 364 0359-0360 367 PRA202-0394-0397 Settlement DP O: 0394-0395; 0397; S: No Locke Decl.; Partial duplicate of CD 364 0396 369 PRA202-0457-0460 Settlement DP O: 0457-0458; S: 0459- No Reed Decl. 0460 370 PRA202-0700-0721 Settlement DP S: 0702-0705; 0718- No Locke Decl.; Produced in redacted form; 0720 0700-0701; 0706-0717; 0721 released 371 PRA202-0733-0736 Settlement DP O: 0733-0734; S: 0735- Yes Locke Decl. 0736 373 PRA203-0015-0015 Recoupment DP S No Locke Decl. 374 PRA203-0028-0031 Youth Smoking DP O: 0028-0029; S: 0030- Yes Locke Decl. 0031 375 PRA203-0045-0046 Recoupment DP S No Locke Decl. 376 PRA203-0322-0326 Youth Smoking DP S No Locke Decl. 377 PRA203-0692-0694 Synar Amend. DP S: 0692-0693; O: 0694 Yes Locke Decl. 379 PRA203-0782-0788 Synar Amend. DP S Yes Locke Decl. 380 PRA203-0831-0837 DP; AC O n/a Privilege claim withdrawn 381 PRA203-0844-0845 Misc. DP S No Locke Decl. 382 PRA205-0584-0586 Legislation DP O: 0584-0585; S: 0586 No Locke Decl. 383 PRA206-1251-1255 Synar Amend. DP S No Reed/Gonzales Decls. 384 PRA206-1258-1266 DP O n/a No Declaration provided in support of privilege claim 386 PRA207-0512-0515 Legislation DP O: 0512-0513; S: 0514- No Locke Decl. 0515 387 PRA207-0531-0536 Recoupment DP O: 0531-0532; S: 0533- No Locke Decl. 0536 388 PRA207-0650-0653 Recoupment DP O: 0650-0651; S: 0652- No Locke Decl. 0653 389 PRA207-0654-0659 Recoupment DP O: 0654-0655; S: 0656- No Locke Decl. 0659 390 PRA209-0023-0023 USTR DP S Yes Locke Decl. 391 PRA210-0477-0478 Youth Smoking DP O: 0477; S: 0478 No Locke Decl. 392 PRA210-0629-0631 Legislation DP O: 0629-0630; S: 0631 No Reed/Gonzales Decls. 393 PRA211-0404-0415 Settlement DP O: 0404-0405; 0415; S: No Locke Decl. 0406-0414 394 PRA212-0778-0780 DP O n/a No Declaration provided in support of privilege claim 395 PRA213-0214-0219 Misc. DP; PC O: 0214-0215; PC: S: No Locke/Gonzales Decls. 0216-0219 396 PRA213-0669-0674 Legislation DP; PC; AC PC: O; AC: S: 0672 in No Locke/Gonzales Decls. part; O: 0669-0670; 0674; DP: S: 0671-0673 397 PRA213-0848-0853 Legislation DP O: 0848-0849; S: 0850- No Locke Decl. 0853 398 PRA213-0933-0938 Settlement DP O: 0933-0935; S: 0936- No Locke Decl. 0938 399 PRA214-0013-0015 Misc. DP O: 0013-0014; S: 0015 Yes Locke Decl. 400 PRA214-0032-0035 Synar Amend. DP O: 0032-0033; S: 0034- Yes Locke Decl. 0035 401 PRA214-0071-0073 Youth Smoking DP O: 0071-0072; S: 0073 No Locke Decl. 403 PRA214-0115-0117 VA DP O: 0115-0116; S: 0117 No Locke Decl. 404 PRA214-0118-0120 VA DP O: 0118-0119; S: 0120 No Locke Decl. 405 PRA215-0024-0028 Recoupment DP O: 0024-0026; S: 0027- Yes Locke Decl. 0028 406 PRA215-0034-0038 Recoupment DP O: 0034-0035; S: 0036- Yes Locke Decl. 0038 407 PRA215-0044-0048 Recoupment DP O: 0044-0045; S: 0046- Yes Locke Decl.; Partial duplicate of CD 406 0048 408 PRA215-0052-0054 Recoupment DP O: 0052-0053; S: 0054 Yes Locke Decl.; Partial duplicate of CD 405 409 PRA215-0055-0060 Recoupment DP O: 0055-0056; S: 0057- Yes Locke Decl. 0060 410 PRA215-0071-0076 Recoupment DP; PC O: 0071-0072; 0076; No Locke/Gonzales Decls. PC S: 0073-0075 411 PRA215-0093-0097 Recoupment DP O: 0093-0094; S: 0095- Yes Locke Decl. 0097 412 PRA215-0098-0106 Recoupment DP O: 0098-0100; 0106; S: Yes Locke Decl.; Partial duplicate of CD 406 0101-0105 413 PRA215-0110-0114 Recoupment DP O: 0110-0111; 0114; S: Yes in Locke Decl. 0112-0113 part 414 PRA215-0115-0118 Misc. DP O: 0115-0116; S: 0117- No Locke Decl. 0118 415 PRA215-0147-0150 Recoupment DP O: 0147-0148; S: 0149- Yes Locke Decl.; partial duplicate of 410 0150 416 PRA215-0182-0185 Recoupment DP O: 0182-0183; S: 0184- Yes Locke Decl.; Duplicate of portion of CD 0185 415 417 PRA215-0186-0189 Recoupment DP O: 0186-0188; S: 0189 Yes Locke Decl.; Partial duplicate of CD 408 418 PRA215-0190-0192 Recoupment DP O: 0190-0191; S: 0192 Yes Locke Decl. 419 PRA215-0210-0213 Recoupment DP O n/a Locke Decl. 420 PRA215-0270-0273 Legislation DP O: 0270-0271; S: 0272- No Locke Decl. 0273 421 PRA216-0062-0065 Synar Amend. DP O: 0062-0063; S/O: No Locke Decl.; Produced in redacted form 0064-0065 422 PRA216-0504-0504 Youth Smoking DP S No Locke Decl. 423 PRA216-0539-0539 Settlement DP O n/a Locke Decl. 424 PRA219-0535-0543 Recoupment DP O: 0535-0537; 0543; S: Yes in Locke Decl.; release 1 ¶ 0541 0538-0542 part 426 PRA221-0125-0131 Youth Smoking DP O: 0125-0126; S: 0127- yes Locke Decl. 0131 428 PRA221-0275-0279 Legislation DP; AC AC: O; DP: O: 0275- No Locke Decl. 0276; 0279; S: 0277-0278 430 PRA226-0014-0014 Youth Smoking DP S No Locke Decl. 431 PRA233-0013-0015 Legislation DP O: 0013-0014; S: 0015 Yes Locke Decl. 432 PRA234-0050-0055 Synar Amend. DP O: 0050-0051; S: 0052- Yes Locke Decl. 0055 435 PRA237-0126-0128 Misc. DP O n/a Locke Decl. 438 PRA239-0265-0267 Youth Smoking DP; PC O: 0265-0266; PC: S: No Locke/Gonzales Decls. 0267 439 PRA300-0119-0124 Legislation DP S: 0122; O: 0120 No Locke Decl.; Produced in redacted form — 0119 0124 non-responsive; 0121 0123 released 440 PRA300-0147-0153 Youth DP; PC PC: S No Gonzales Decl. Smoking/Bush Admin. 441 PRA300-0227-0228 Misc. DP O: 0228; S: 0227 no Locke Decl. "The Executive Branch's deliberations regarding the 1997 proposed settlement between the states' attorneys general and the tobacco companies and the 1998 Master Settlement Agreement ("MSA")." Locke Decl. ¶ 6A; Reed Decl. ¶ 15A; Gonzales Decl. Ex. A ¶ A. "The Executive Branch's deliberations regarding tobacco legislation sponsored by Sen. McCain, including various amendments and alternatives thereto, and other tobacco-related legislation and regulations not specifically placed into another group in this declaration." Locke Decl. ¶ 6B; Reed Decl. ¶ 15B; Gonzales Decl. Ex. A ¶ B. "The Executive Branch's deliberations regarding possible recoupment by the Federal Government of the Medicaid-related portion of the states' recovery under litigation, legislation, or settlement with the tobacco companies." Locke Decl. ¶ 6C; Reed Decl. ¶ 15C; Gonzales Decl. Ex. A ¶ C. "The Executive Branch's deliberations regarding options to combat underage smoking." Locke Decl. ¶ 6D; Reed Decl. ¶ 15D; Gonzales Decl. Ex. A. ¶ D. "The Executive Branch's deliberations regarding the application of the Synar Amendment to individual states and possible changes to that amendment and its related regulations." Locke Decl. ¶ 6E; Reed Decl. ¶ 15E; Gonzales Decl. Ex. A ¶ E. "The Executive Branch's deliberations regarding legislative options in response to the legal opinions issued by the Department of Veterans Affairs General Counsel concerning coverage of tobacco-related illnesses." Locke Decl. ¶ 6F; Reed Decl. ¶ 15F; Gonzales Decl. Ex. A ¶ F. "The Executive Branch's deliberations regarding international tobacco issues, including the Framework Convention on Tobacco Control." Reed Decl. ¶ 15G; Gonzales Decl. Ex. A ¶ G. "The Executive Branch's deliberations regarding tobacco farmers, including efforts to assist tobacco farmers and their communities." Reed Decl. ¶ 15H; Gonzales Decl. Ex. A ¶ H. "Miscellaneous documents involving Executive Branch Deliberations." Locke Decl. ¶ 6G; Reed Decl. ¶ 15I. Documents from the Office of the U.S. Trade Representative (Veroneau Decl.) Documents originating from the Office of the Vice President (Brown Decl.)

APPENDIX B

Name Position Aceto, Paul V. Adler, Devorah R. Agress, Gordon P. Alexander, James Altoft, Lois Anderson, Barry Anderson, Robert B. Apfel, Kenneth S. Arbuckle, Donald R. Attie, Eli G. Aylward, Patrick Bachman, Robin J. Balderston, Kris M. Balis, Ellen J. Barreto, Brian R. Barshefsky, Charlene Barth, Mary C. Baylor, Elizabeth Beier, David W. Bennett, Matthew L. Berg, Lisa A. Berman, Len Bernard, Kenneth W. Beynon, Rebecca A. Bialis, Kathleen M. Bianchi, Sarah A. Bianco, Matthew J. Biel, Eric R. Blickstein, Jill M. Boeder, Laurie Boone, Sherman G. Bowles, Erskine Brain, Charles M. Burkhardt, Daniel W. Burson, Charles Campbell, Bradley M. Carozza, Shirley Cash, Lester Casstevens, Kay Cerda, Jose, III Chenok, Daniel J. Chough, Eugenia Chow, Barbara Claxton, Gary Clendenin, Barry T. Cochran, Norris W. Cohen, Cameron N. Cohen, Delia A. Cohen, Michael Connelly, Hugh T. Costello, Daniel W. Crisci, Michelle Cutler, Lynn G. Dailard, Cynthia Dame, Philip R. Damus, Robert G. Davis, Caroline B. Davis, William K. Deich, Michael Deitinger, Elliot J. Dixon, Monica M. Dobson, Sean R. Donenfeld, Toby Donnelly, Robert Donovan, Kate P. Dooley, Karen S. Dorotinsky, William L. Dorton, Patrick M. Drye, Elizabeth Duncan, John D., Jr. DuVal, Frederick J. Echaveste, Maria Ehlers, Karl Ellis, Phil Elmore, Stephen G. Emanuels, Kristina A. Emery, Jr., Richard P. Emmett, Laura Engebretsen, Jenni R. Erbach, Adrienne Erickson, Janelle E. Esquea, Jim R. Ewing, Patricia Eydt, Allison H. Fanaroff, Joseph C. Farkas, Jeffrey A. Feldman, Michael B. Ferguson, Jennifer Filippone, Desiree G. Finch, Molly Foley, Martha C. Fontenot, Keith Forbes, Jeffrey A. Forbes, Ripley Forsgren, Janet R. Forshey, Jennifer M. Fortuna, Diana Fox, William J. Frederickson, Caroline R. Freedman, Thomas I. Friedman, Jennifer Furman, Jason Garufi, Marc Gersten, Alexander N. Gibson, Jessica L. Gips, Donald H. Glauthier, T.J. Goad, Michael L. Goldberg, Julie Gotbaum, Joshua Gottheimer, Joseph S. Gould, J. Eric Green, Melissa Grishkot, Vivian Gruber, Jonathan D. Haas, Lawrence J. Hall, Bill Harris, Jeffrey Haun, David J. Haverkamp, Jennifer R. Hickey, Michael Himler, Janet Ho, Christina S. Hoffman, Marty J. Hohman, Dennis Hustead, Toni A. Ibarra, Mickey Ip, Chin Chin Jacobson, Laurence R. Jenkins, Chad Jennings, Christopher C. Johnson, Carol S. Johnson, Robert B. Jones, Teresa M. Kaeding, Patricia Kagan, Elena Kane, Andrea Kantor, Douglas S. Kantor, Michael Kaplan, Jonathan A. Katzen, Sally Keenan, Alexander S. Kendrall, Ann Kieffer, Charles E. Kirchgraber, Katherine Klain, Ron Klasky, Helaine Kohlenberger, Jim Konigsberg, Charles Kountoupes, Lisa M. Kullman, Karin Lambrew, Jeanne Lamela, Lourdes M. Lamontagne, Margaret LaPlaca, Daniel Levin, Lisa Lew, Jacob J. Lin, Judy C. Lind, Susanne D. Little, Bethany Livingston, Brooke B. Locke, Patrick G. Lockhart, Joseph Long, Bruce D. Lyon, Randolph M. Mande, Jerold R. Marcus, Dan Marr, Charles R. Martin, Tanya E. Matlack, Larry Mayfield, Emory L. Mayock, Andrew Mays, Cathy Mazur, Mark McAlpine, Jan McCarthy, Colleen McClellan, Mark McClelland, John McCurry, Michael McGee, Jennifer E. Mellody, April Menard, Barbara A. Mendelson, Daniel N. Mendoza, Estela A. Mikitka, Maria F. Miller, Mark E. Min, Nancy-Ann Minarik, Joseph J. Mooers, Gina C. Moran, Harry E. Morrall, III, John F. Murguia, Janet Murphy, Brian Murr, James C. Musgrave, Reuben L., Jr. Myers, Mindy E. Nabors, Robert L. Nakagiri, Melany Newman, Elizabeth Novotny, Dr. Thomas Oakman, Jeffrey O'Connor, Jennifer M. O'Hara, Jim O'Malley, Molly Orlando, Jason R. Payne, Julia M. Pellicci, Robert J. Pfau, Belinda Phelps, Anne Pizzuto, Jill M. Posner, Steven Rabner, Nicole R. Raines, Franklin D. Reed, Bruce N. Reilly, Thomas Rettman, Rosalyn J. Reyneri, Nelson Ricci, Linda Rice, Cynthia A. Richman, Paul J. Richter, Anna Rideout, Robert Rivas-Vazquez, Vicki Rivera, Maritza Robinson, Christa Rodriguez, Justine F. Roscoe, Jena V. Rosen, Robert Ross, Lynn Rosshirt, Thomas M. Rossman, Elizabeth L. Rotherham, Andy Rowe, David Rubin, Robert E. Ruff, Charles Sakol, Jodi R. Sampson, Lavonne D. Santesteban, Christian J. Sastry, Narahari Satcher, Dr. David Sauer, Christopher M. Schack, Lori Scahct, Diana Scher, Peter Schneider, Andrew Schnur, Jonathan H. Schroeder, Ingrid M. Scott, Andrew J. Shalala, Donna Seiber, Mariah S. Seidl, III, Frank J. Seidman, Ellen S. Semenuk, Stephen H. Shapiro, Hal Scott Sheketoff, Emily Shimabukuro, Leanne Shub, Rachel Siewert, Jake Silverman, Stephen B. Slaney, Joanne A. Smalligan, Jack A. Smith, Cynthia M. Smith, Jeffrey M. Smith, Mary L. Smith, Michelle A. Soto, Maria E. Spaulding, Chandler G. Spector, Stacie Sperling, Gene Spuria, Lillian Stack, Kathryn B. Stein, Larry Stevens, David Y. Stigile, Arthur W. Stott, Darby Stout, Dennis L. Sullivan, Margaret Sullivan, Rachael E. Summers, Lawrence Tamagni, Jordan Tarullo, Daniel Taylor, Lowell J. Taylor, Wendy A. Thornton, Tracey E. Tobe, Amy Toiv, Barry J. Topel, Elisabeth Tuchmann, Paul Tumlinson, Anne E. Turman, Richard J. Vaeth, Matthew VanWie, Pamela B. Vela, Moe Venable, Nicole Vickers, Phebe N. Wachino, Victoria A. Waldman, Michael Walker, Christopher F. Waller, Margy Ward, Alecia Warren, Wesley P. Washington, Barbara E. Washington, Essence P. Wasserman, Mark A. Weatherly, Mark A. Weinstein, Paul J., Jr. Weiss, Lowell Weissman, Peter White, Barry White, William G. White, William H., Jr. Williamson, Irving Winski, John Winter, Ariel Woolley, Barbara D. Yamin, Sandra Zavada, David Zonana, Victor State Department employee Assistant Director for Health Policy, DPC Program Examiner, Health/Personnel, OMB HHS employee Confidential Assistant, Administration, OMB Assistant Director, Budget Review, OMB Economist, Economic Policy, OMB Associate Director, Human Resources, OMB Acting Administrator of Office of Information and Regulatory Affairs, OMB Office of Deputy Chief of Staff for Communications, OVP Program Examiner, Health/Personnel, OMB Associate Director, Research, Cabinet Affairs, WHO, EOP Deputy Assistant to the President and Deputy Cabinet Secretary, Cabinet Affairs, WHO, EOP Financial Economist, Budget Analysis and Systems, Budget Review, OMB Deputy Chief of Staff, National Economic Council, OPD United States Trade Representative, USTR Financial Economist, Budget Analysis and Systems, Budget Review, OMB Research Associate, OVP, EOP Chief Domestic Policy Advisor for the Vice President, OVP Office of the Deputy Director of Scheduling, OVP, EOP Director of Scheduling and Advance for the Vice President, OVP Treasury employee Special Advisor to the Assistant to the President for National Security Affairs, NSC, EOP Attorney, Office of General Counsel, OMB HUD employee Office of the Chief Domestic Policy Advisor to the Vice President, OVP Legislative Assistant, Legislative Affairs, WHO, EOP WHO, EOP employee Program Examiner, Director's Office, OMB HHS employee Director, International Economic Council, National Security Council, EOP White House Chief of Staff Deputy Assistant to the President for Legislative Affairs (House), Legislative Affairs, WHO, EOP Special Assistant to the President and Director of Correspondence and Presidential Messages, Staff Secretary, WHO, EOP Chief of Staff and Counselor to the Vice President, OVP Associate Director for Toxics and Environmental Protection, Council on Environmental Quality, EOP Director of the Budget, VA Chief, Science and Regulatory Affairs Branch, ASMB, HHS Director of Legislative Affairs for the Vice President, OVP Special Assistant to the President for Health Policy, DPC Policy Analyst, Office of Information and Regulatory Affairs, OMB Assistant Director for Domestic Policy, DPC Associate Director, Education, Income Maintenance, and Labor Division, OMB HHS Assistant Secretary for Planning and Evaluation Deputy Associate Director, Health/Personnel, OMB Program Examiner, Health/Personnel, OMB WHO, EOP employee Deputy Director, Correspondence, Staff Secretary, WHO, EOP Deputy Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB Program Examiner, National Security and International Affairs, OMB Assistant to the Senior Advisor, Chief of Staff, WHO, EOP Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, EOP Associate Director for Domestic Policy, DPC Deputy Assistant Director, Budget Analysis and Systems, Budget Review, OMB General Counsel, OMB Program Examiner, Health/Personnel, OMB Director, Legislative Affairs, NSC, EOP Associate Director, General Government and Finance, OMB WHO, EOP employee Deputy Chief of Staff, Office of the Vice President, OVP, EOP Advisor for Communications and Strategy, DPC Office of the Chief Domestic Policy Advisor for the Vice President, OVP Program Examiner, Health/Personnel, OMB Staff Assistant, Legislative Affairs, OMB Administrative Support Assistant, VA/Personnel Program Examiner, Health/Personnel, OMB Special Assistant to the President and Communications Director, NEC, OPD Chief of Staff, DPC Special Advisor on International Economic Policy and Counselor, National Security Council, EOP Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, White House Assistant to the President and Deputy Chief of Staff, WHO, EOP Office of U.S. Trade Representative, EOP Treasury employee Legislative Assistant, Legislative Reference Division, OMB Policy Analyst, OIRA, OMB Assistant Director, Budget review, OMB Policy Assistant, DPC Deputy Director of News Analysis, OEOB Press Office, Press Secretary, WHO, EOP Senior Advisor to the Deputy Director, OMB Legislative Assistant, Legislative Affairs, WHO, EOP Program Examiner, Health/Personnel, OMB Deputy Chief of Staff for Communications, OVP Policy Analyst, OIRA, OMB Special Assistant for Communications, Communications, WHO, EOP Program Examiner, Health/Personnel, OMB Senior Advisor, Office of the Chief of Staff, OVP Confidential Assistant, Health/Personnel, OMB Program Examiner, Income Maintenance Branch, Human Resources, OMB Student Assistant, Health/Personnel, OMB Senior Legislative Counsel, Legislative Affairs, WHO, EOP Chief, Income Maintenance, Human Resources, OMB Deputy Assistant to the President and Deputy Director of Scheduling, WHO, EOP Office of the Secretary, HHS Chief, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB Program Examiner, Health/Personnel, OMB Senior Policy Analyst, DPC Treasury employee Special Assistant to the President for Legislative Affairs, Legislative Affairs, WHO, EOP Special Assistant to the President and Senior Director for Policy Planning, DPC Program Examiner, Income Maintenance Branch Senior Director and Senior Economic Advisor, NEC, OPD Program Examiner, Health/Personnel, OMB WHO, EOP employee Special Assistant to the President and Director of Legislative Affairs, WHO, EOP Chief Domestic Policy Advisor for the Vice President, OVP Associate Director, Natural Resources, Energy, and Science, OMB Program Examiner, Personnel, Postal, EXOP Branch, VA/Personnel Assistant Press Secretary, WHO, EOP Executive Associate Director, OMB Special Assistant to the Director of Speechwriting, Speechwriting, Communications, WHO, EOP Associate Director for Domestic Policy, DPC Special Assistant, National Economic Council, OPD WHO, EOP employee Deputy Assistant Secretary, Treasury; later a consultant to the Administration Communications Director for the Vice President, OVP HHS employee Consultant Chief, Justice Branch, General Government and Finance, OMB Assistant U.S. Trade Representative for Environment and Natural Resources, USTR Program Examiner, Interior Branch, Natural Resources Division, OMB Program Examiner, Human Resources, OMB Assistant Director for Domestic Policy, DPC Staff Assistant, Legislative Affairs, Who, EOP HHS employee Chief, Veterans Affairs Branch, Health/Personnel, OMB Assistant to the President and Director of Governmental Affairs, WHO, White House Program Examiner, Health/Personnel, OMB Economist (International), Economic Policy, OMB OMB employee Deputy Assistant to the President for Health Policy, DPC, White House Program Examiner, VA/Personnel, Health/Personnel, OMB Deputy Assistant to the President and Deputy Director of Public Liaison, WHO, EOP Policy Assistant, DPC Associate Chief Counsel, FDA, HHS Deputy Assistant to the President for Domestic Policy, DPC Associate Director for Domestic Policy, DPC HUD employee U.S. Trade Representative, Office of the U.S. Trade Representative, EOP Chief of Staff, National Economic Council, OPD, EOP Deputy Assistant to the President for Economic Policy and Deputy Director, National Economic Council, OPD, EOP Program Examiner, VA/Personnel, Health/Personnel, OMB Program Examiner, Health/Personnel, OMB Acting Associate Director, Legislative Affairs, OMB Program Examiner, Health/Personnel, OMB Chief of Staff, OVP Deputy Assistant USTR for Public Media Affairs, USTR Office of Chief Domestic Policy Advisor for the Vice President, OVP Assistant Director for Legislative Affairs, OMB Special Assistant to the President for Legislative Affairs, WHO, EOP Assistant Director of Presidential Scheduling, Scheduling, WHO, EOP Associate Director, Health, OMB Program Examiner, Health/Personnel, OMB Assistant to the President for Domestic Policy, DPC Program Examiner, VA/Personnel, OMB Special Assistant to the Deputy Press Secretary, WHO, EOP Director, OMB Program Examiner, Health/Personnel, OMB Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB Associate Director for Domestic Policy, DPC Legislative Analyst, Legislative Affairs, OMB Policy Analyst, Budget Analysis Branch, Budget Review Division, OMB Assistant to the President and White House Press Secretary Deputy Associate Director, VA, Health/Personnel, OMB Economist, Economic Policy, OMB Office of Science and Technology Policy detailed to Office of Vice President Senior Counsel, Counsel to the President, WHO, EOP Senior Advisor for Budget Policy, National Economic Council, OPD Associate Director for Education and Policy Planning, DPC Chief, Labor Branch, Education, Income Maintenance, and Labor Division, OMB Special Assistant to the Deputy Director, Intergovernmental Affairs, WHO, EOP Senior Advisor for Public Liaison, WHO, EOP Executive Assistant to the Director, DPC Senior Director, National Economic Council, OPD Director for Multilateral Trade and Environmental Policy, USTR Director of Scheduling, USTR Economic Policy, Treasury Treasury employee Deputy Press Secretary, WHO, EOP Duty Officer, NSC, EOP Assistant Press Secretary, WHO, EOP Program Examiner, Helath/Personnel, OMB Associate Director, Health/Personnel, OMB Assistant Press Secretary for Specialty Press, WHO, EOP Program Examiner, Energy and Science, Natural Resources, Energy and Science, OMB Chief, Health Financing, Health/Personnel, OMB Associate Director for Health and Personnel, OMB Associate Director, Economic Policy, OMB Executive Assistant, Health/Personnel, OMB Budget Methods Specialist, Budget Review, OMB Chief, Human Resources, Office of Information and Regulatory Affairs, OMB Deputy Assistant to the President and Deputy Director of Legislative Affairs, WHO, EOP WHO, EOP employee Assistant Director, Legislative Reference Division Director, Presidential Letters, Staff Secretary, WHO, EOP Special Assistant to the Deputy Director, Legislative Affairs, WHO, EOP Senior Advisor to the Director, OMB Program Examiner, Health/Personnel, OMB Special Assistant to the Press Secretary, WHO, EOP Assistant Surgeon General, Deputy Assistant Secretary for International and Refugee Health, HHS Writer, Presidential Letters, Staff Secretary, WHO, EOP Office of the Chief of Staff, WHO, EOP HHS employee Confidential Assistant, Health Care Services, OMB Policy Analyst, Budget Analysis and Systems, Budget Review, OMB Special Assistant to the President and Assistant Press Secretary, WHO, EOP Legislative Analyst, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB WHO, EOP employee Special Assistant to the President for Health Policy, DPC Confidential Assistant, Human Resources, OMB Treasury employee Associate Director for Domestic Policy, DPC Former Director, OMB Assistant to the President for Domestic Policy and Director, DPC Chief, Health and Human Services Branch, Health/Personnel, OMB Associate General Counsel for Budget, Office of General Counsel, OMB Special Assistant to the Chief of Staff, WHO, EOP Associate Director, Communications, OMB Special Assistant to the President for Domestic Policy, DPC OVP employee Assistant Director for Domestic Policy, DPC Chief, Personnel, Postal, EXOP Branch, VA/Personnel, OMB HHS employee Associate Director, Public Liaison, WHO, EOP Associate Director for Communications and Events, DPC Deputy Associate Director, Economic Policy, OMB Associate Director, Public Liaison, WHO, EOP Special Assistant to the President and Associate Director of Advance, WHO, EOP Program Examiner, VA, Health/Personnel, OMB Office of the Deputy Chief of Staff, Communications, OVP Budget Preparations Specialist, Budget Review, OMB Special Assistant to the President for Domestic Policy, DPC Program Examiner, Health/Personnel, OMB Secretary of the Treasury Counsel to the President, WHO, EOP Office of the Communications Director for the Vice President, OVP Program Assistant, VA/Personnel, Health/Personnel, OMB Staff Economist, Council of Economic Advisors, EOP Program Examiner, VA/Personnel, OMB Surgeon General, HHS Program Examiner, Income Maintenance Brach, Human Resources, OMB Program Examiner, Education, OMB Special Assistant to the President for Justice Policy, DPC Ambassador, Special Trade Negotiator, USTR Special Assistant to the Chief Domestic Policy Advisor to the Vice President, OVP Associate Director for Education Policy, DPC Legislative Analyst, Economics, Science, General Government and Finance, OMB Program Examiner, Health/Personnel, OMB Secretary, HHS Resource Assistant, National Security and International Affairs, OMB Program Examiner, Health/Personnel, OMB Special Assistant to the President for Economic Policy, National Economic Council, Office of Policy Development Policy Analyst, OIRA, OMB Senior Advisor for International Economic Policy and Senior Counselor to the Director, OPD Labor employee Associate Director for Domestic Policy, DPC Associate General Counsel, OGC, USTR Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP EOP employee Special Assistant to the President for Legislative Affairs, WHO, EOP Program Examiner, Income Maintenance Branch, Human Resources, OMB Program Examiner, Health/Personnel, OMB Executive Assistant to the Director for Policy and International Affairs, OSTP, EOP Associate Director for Policy Planning, DPC Treasury employee Special Assistant to the Director, Intergovernmental Affairs, WHO, EOP Outreach Coordinator, Communications, WHO, EOP Deputy Assistant to the President and Deputy Director of Communications, WHO, EOP Director, National Economic Council, OPD Program Examiner, Health/Personnel, OMB Program Examiner, Human Resources, OMB Assistant to the President and Director of Legislative Affairs, White House Office, White House Office of Science and Technology Policy, EOP Financial Economist, Budget Analysis and Systems, Budget Review, OMB Staff Assistant, Press Secretary, WHO, EOP Program Examiner, VA/Personnel, Health/Personnel, OMB Chief of Staff, USTR Special Assistant, Office of Legal Counsel, OVP Secretary, Treasury Special Assistant to the President and Presidential Speechwriter, Speechwriting, Communications, WHO, EOP Deputy Assistant to the President for Economic Policy, NEC, OPD Employee, Council on Economic Advisors, EOP Policy Analyst, Office of Information and Regulatory Affairs, OMB Deputy Assistant to the President for Legislative Affairs (Senate), Legislative Affairs, WHO, EOP WHO, EOP employee Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Program Examiner, Health/Personnel, OMB Special Assistant, Chief of Staff, OVP Program Examiner, Health/Personnel, OMB Chief, Health Programs and Services, Health/Personnel, OMB Program Examiner, Health/Personnel, OMB Program Examiner, Labor Branch, Human Resources Division, OMB Chief Financial Officer, Chief of Staff and Administration, OVP Congressional Affairs Specialist, Congressional Affairs, USTR Deputy Associate Director, National Security and International Affairs, OMB Senior Adviser, Office of the Director, OMB Assistant to the President and Director of Speechwriting, Communications, WHO, EOP WHO, EOP employee Associate Director and Senior Advisor for Welfare and Working Families, DPC Confidential Assistant, Natural Resources, OMB OMB employee Program Examiner, Health, OMB Policy Assistant, DPC International Economist, Economic Policy, OMB Chief, Agriculture Branch, Natural resources, Energy and Science, OMB Special Assistant to the President for Domestic Policy and Chief of Staff, DPC Special Assistant to the President and Presidential Speechwriter, WHO, EOP Executive Assistant, NEC, OPD Deputy Associate Director, Human Resources, OMB Program Examiner, Health/Personnel, OMB Special Assistant to the President for Intergovernmental Affairs, WHO, EOP Deputy General Counsel, USTR Council on Environmental Quality employee Office of the Secretary, HHS Special Assistant to the President and Associate Director, Public Liaison, WHO, EOP Legislative Analyst, Legislative Affairs, OMB Program Examiner, VA, Health/Personnel, OMB HHS employee