U.S. v. Philip Morris, Inc.

Full title: UNITED STATES OF AMERICA, Plaintiff, v. PHILIP MORRIS, INC., et al.…

Court: United States District Court, D. Columbia

Date published: Sep 7, 2004

Civil Action No. 99-CV-2496 (GK) (D.D.C. Sep. 7, 2004)

Opinion

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

September 7, 2004

Next scheduled appearance: September 21, 2004 — Trial [Referred to Special Master Levie] REDACTED FOR PUBLIC FILING REPORT AND RECOMMENDATION # 171 OF THE SPECIAL MASTER [Joint Defendants' Fourth EOP/PRA Challenge]

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

Before the Special Master are Joint Defendants'¹ Fourth Motion to Compel Certain Documents Listed on Plaintiff's Executive Office of the President and Presidential Records Act Privilege Logs, Plaintiff's Opposition, Joint Defendants' Reply, and Plaintiff's Surreply. Upon review of the memoranda, and an in camera review of the documents submitted by Plaintiff, 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 identified 500 documents for potential challenge on Plaintiff's PRA/EOP privilege logs. Defs.' Mem. in Supp. at 3, citing Ex. 1 (3/28/03 Letter from Richard Cassetta to David Klontz). The parties met and conferred on eight occasions and Joint Defendants subsequently filed the instant Motion to compel 399 of the documents. Id. at 3-4. Plaintiff then agreed to release 76 documents in their entirety and 15 documents with redactions. Reply at 2 n. 3, citing Ex. 1 (8/7/03 Letter from M. Burrell to N. Nierengarten). Joint Defendants continue to challenge the 15 redacted documents, as well as the 323 documents remaining documents.²

2 Of the documents challenged, Plaintiff has not offered Declarations officially asserting privilege claims for the following documents: PRA171-2238-2239 [CD 30]; PRA171-3472-3472 [CD 84]; PRA172-0295-0295 [CD 160]; RA172-1761-1765 [CD 322]; PRA172-2596-2598 [CD 380]; PRA172-3549-3549 [CD 459]. The Special Master recommends that the claims noted on Plaintiff's privilege log be deemed waived, and that Plaintiff be ordered to produce these documents to Joint Defendants if it has not already done so.

In support of its claims of privilege, Plaintiff offers the Declarations of Cynthia Rice, on behalf of the Domestic Policy Council (DPC), Executive Office of the President (EOP);³ Patrick Locke, on behalf of the Office of Management and Budget (OMB), EOP;⁴ Elizabeth M. Brown, former Counsel to the Vice President;⁵ Alberto R. Gonzales, on behalf of the Office of the President;⁶ and Charles F. Stone, former economist with the Council of Economic Advisors (CEA) in the Clinton/Gore Administration.⁷

3 Opp. App. 3.

4 Opp. App. 4.

5 Opp. App. 5.

6 Opp. App. 6.

7 Opp. App. 7.

II. Arguments of the Parties and Preliminary Observations

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

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

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

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

Opp. at 5 (citation omitted).

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

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

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

The Special Master noted in Report and Recommendation #164 that

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

Report and Recommendation #164 at 13.

Also as noted in Report and Recommendation #164, the Special Master is mindful that "[t]he presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President," and that "privileges should be narrowly construed." RR #164 at 13, quoting In re Sealed Case, 121 F.3d at 752. Therefore, the Special Master has taken a narrow approach to analyzing the applicability of the privilege for the Challenged Documents, focusing on whether the deliberations ultimately called for Presidential decisionmaking.

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

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

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

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

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

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

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

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

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

III. Legal Standards

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. See 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). 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, 470 (1888); Upjohn, 449 U.S. at 389.

"`[The] protection of the privilege extends only to communications and not to facts. A fact is one thing and a communication concerning that fact is an entirely different thing.'" Upjohn, 449 U.S. at 395-96 (quoting Philadelphia v. Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962) (emphasis in original)). Therefore, even if a fact is publicly known, if it is included in a confidential communication from a client to an attorney for the purpose of seeking legal advice, the communication will be privileged. In re Ampicillin Antitrust Litig., 81 F.R.D. 377, 388 (D.D.C. 1978). The converse is also true: if an attorney learns a fact outside of the attorney-client relationship, that information will not be subject to the privilege. Id. 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." Id. at 384. 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, Inc. v. Department of Air Force, 566 F.2d 242, 254 (D.C. Cir. 1977)). Second, the fact that the attorney at issue serves as inhouse 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 Antitrust 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 v. California Union Ins. Co., 118 F.R.D. 242, 247-48 (D.D.C. 1986). The client expressly must have 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).

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 (7th Cir. 1997). Waiver of the privilege can be express or implied, inadvertent or deliberate.Neuder v. Battelle Pacific Northwest Nat'l Lab., 194 F.R.D. 289, 298 (D.D.C. 2000). 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).

The privilege applies only to legal advice and not to business opinions, see Neuder, 194 F.R.D. at 292, or public relations advice. Burton v. R.J. Reynolds Tobacco Co., 200 F.R.D. 661, 669 (D. Kan. 2001) ("Burton II"). At times, business and legal advice are "inextricably intertwined," and the fact that legal advice incorporates business considerations will not invalidate the privilege assertion. Coleman v. American Broadcasting Cos., Inc., 106 F.R.D. 201, 206 (D.D.C. 1985). However, where business and legal advice are inextricably intertwined, the legal advice must predominate over the business advice, and not be merely incidental, for the communications to be protected by the attorney-client privilege. Neuder, 194 F.R.D. at 292, citingGreat Plains Mutual Ins. Co. v. Mutual Reinsurance Bureau, 150 F.R.D. 193, 197 (D. Kan. 1993).

The need to distinguish between business and legal advice often arises in the context where communications to in-house counsel are claimed privileged, as in-house counsel are frequently involved in day-to-day business aspects of the corporation. See United States Postal Serv. v. Phelps Dodge Refining Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). Therefore, as stated above, when the communications involve in-house counsel, the proponent of the privilege must make a clear showing that the communication was intended for legal advice. In re Sealed Case, 737 F.2d at 99. Disclosing a fact to a corporate attorney will not, in and of itself, shield the communication with the privilege. Neuder, 194 F.R.D. at 293. Moreover, documents provided to an attorney to keep counsel informed, without an implied request for legal advice, will not be privileged. Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 497 (D. Kan. 1997) ("Burton I").

B. Deliberative Process Privilege

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Presidential Communications Privilege

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

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

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

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

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

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

IV. Analysis and Recommendation ⁸ A. Executive Branch deliberations regarding the 1997 proposed settlement between the states' attorneys general and the tobacco companies and the 1998 MSA

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

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

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

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

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

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

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

Joint Defendants argue that their need for such information outweighs any valid privilege claim Plaintiff may have. First, they believe that "the discussions and communications contained in these documents reflect on the adequacy, merit, effectiveness, and/or the legality of the requirements contained within the proposed legislation, existing laws or regulations, and/or the binding agreements governing Joint Defendants," and indicate that "certain provisions of the proposed legislation or settlements, and hence certain injunctive relief sought by the Government in this case, conflict with the existing statutory and regulatory framework that Congress has carefully crafted for the United States Tobacco Industry." Mot. App. B at 14.

Joint Defendants also contend that discussions contained within the documents likely are relevant to their affirmative equitable defenses, including laches, waiver, equitable estoppel, unclean hands, in pari delicto, and participation in the RICO enterprise, insofar as the discussions "acknowledge that the Federal government has deliberately and consciously struck this balance with full awareness and knowledge of the risks associated with smoking, and with full awareness, knowledge, and in some instances support, of Joint Defendants' allegedly fraudulent conduct." Id. at 15.

Moreover, to the extent that the "documents contain discussions and communications assessing the impact cigarette price adjustments would have on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes[,] [s]uch discussions and communications could very well contradict claims or assumptions made by the Government's experts in this litigation." Id. at 16. Additionally, Joint Defendants claim as relevant discussions that "reflect on the legality or merit of proposed penalties and/or taxes that could impact the Tobacco Industry to such an extent as to cause an undesirable increase in cigarette smuggling, a runaway black market for cheap cigarettes, and/or bankruptcy of the Tobacco Industry." Id.

Finally, Joint Defendants contend that discussions relating "to whether the proceeds from the MSA constitute federal revenues, and whether the Federal government should seek recoupment from the states . . . are relevant to Joint Defendants' affirmative defenses, including `laches,' `waiver,' `estoppel,' `unclean hands,' and ` in pari delicto.'" Id. at 17.

1. PRA171-1904-1908 [CD 7]

"This document consists of three emails between Jonathan Gruber and Cynthia A. Rice: (a) December 2, 1998, Mr. Gruber to Ms. Rice, forwarding his preliminary analysis of payments to be made under the Master Settlement Agreement (`MSA'), asking for an explanation of some of the information and data provided to him by Ms. Rice, and requesting further information from Ms. Rice to permit him to continue his analysis; (b) December 3, 1998, Ms. Rice to Mr. Gruber, responding to (a) and providing some of the data and information requested by Mr. Gruber; and (c) December 3, 1998, Mr. Gruber to Ms. Rice, presenting his `rough outline' of his analysis of how the tobacco companies will fare (profits made) under the MSA and requesting yet more information from Ms. Rice." Gonzales Decl. Ex. A at 2. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to a decision on what position the Executive Branch should take with respect to the MSA, including the payment provisions, and is deliberative in that the emails "reflect the give-and-take of the consultative process." Coastal States Gas, 617 F.2d at 866. However, the Special Master also believes that Joint Defendants' need outweighs the privilege. Dr. Gruber is an expert witness in this litigation and, thus, his analysis of how cigarette price adjustments would impact Joint Defendants' profits "could very well contradict claims or assumptions made by the Government's experts in this litigation." Mot. App. B. at 16. Further, given that Dr. Gruber is an expert witness, the possibility of future timidity by government employees is minimal. Moreover, internal discussions such as these are 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.

2. PRA171-1980-1980 [CD 13]

"This document is an August 1, 1997 email from Bruce N. Reed to Paul J. Weinstein, with copies to Elena Kagan, Jeanne Lambrew, Elizabeth Drye, and Christopher C. Jennings, providing his recommendation as to a possible increase in tobacco taxes to compensate for a referenced (but unidentified) provision in the proposed 1997 tobacco settlement." Gonzales Decl. Ex. A at 2-3. Plaintiff asserts the presidential communications privilege and deliberative process privilege.

The Special Master recommends that the Court overrule the claim of presidential communications privilege, as Plaintiff has not shown that the communication was authored or received for the purpose of formulating advice to be given to the President. The Special Master further recommends that the Court overrule the claim of deliberative process privilege, as the communication is not deliberative in nature. Mr. Reed states: REDACTED REDACTED. PRA171-1980. The communication does not reflect a "give-and-take," nor does it "weigh the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866. Thus, the document should not be protected from discovery.

3. PRA171-2072-2072 [CD 16]

"This document consists of two emails: (a) July 9, 1997, Bruce N. Reed to Paul J. Weinstein, assessing a tobacco-related meeting and posing a question concerning the deductibility of tobacco advertising; and (b) July 10, 1997, Mr. Weinstein to Mark J. Mazur, seeking further guidance on the issue raised by Mr. Reed." Reed Decl. at 8-9; see also Gonzales Decl. Ex. A at 3. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The email is predecisional to an official position on the proposed settlement and is deliberative in that the email reflects a suggestion by Mr. Reed: REDACTED REDACTED. PRA171-2072. The Special Master does not believe that this communication is sufficiently relevant to Joint Defendants' claims of need.

4. PRA171-2073-2073 [CD 17]

This document consists of two July 9, 1997 emails: (a) Ellen S. Seidman to Peter Orszag, discussing the reliability of public data on teenage smoking, the possible use of that data in connection with proposed lookback surcharges, and suggesting a means by which to obtain more reliable data concerning tobacco sales to children; and (b) Mr. Orszag to Jonathan Gruber and Charles F. Stone, forwarding (a). Gonzales Decl. Ex. A at 3. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the development of tobacco policy on youth smoking and deliberative in that Ms. Seidman provides suggestions for obtaining data on tobacco sales to youths: REDACTED REDACTED. PRA171-2073. The Special Master does not believe that Joint Defendants' have sufficiently demonstrated need for this document, which discusses ways to acquire data on youth tobacco sales.

5. PRA171-2186-2205 [CD 28]

"This document is an August 30, 1997 email from Jeanne Lambrew transmitting to an HHS staffer at his/her home email address, for limited distribution (`this is not to be widely distributed, so take the usual precautions'), an August 29, 1997 memorandum from Christopher Jennings to Gary Claxton and members of the involved HHS staff a detailed "Tobacco Work Group Draft Report" from the `Tobacco Settlement Program and Budget Group,' and soliciting review of and comments on the options and issues in that draft report. The report provides the Program and Budget Group's overall assessment of the tobacco settlement and reveals the group's analysis of, and topics for further consideration concerning, the recommended spending plan insofar as it relates to funding for education, health investment and health care programs, and tobacco-related research." Rice Decl. at 9. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part and overrule in part the claim of privilege. The August 30, 1997 email only forwards the draft report and contains no substantive information; thus, the privilege should not apply to this page (PRA171-2186). The attached draft report and emails relating to it (PRA171-2187-2205) are predecisional to the adoption of agency policy on the tobacco settlement and is deliberative as it reflects the give-and-take of the agency in creating that policy. The report is addressed to Gary Claxton and members of HHS staff, and the memorandum from Mr. Jennings at page PRA171-2187 requests: REDACTED REDACTED. PRA171-2187. The Special Master does not believe that Joint Defendants have sufficiently shown that communications related to evaluation of the 1997 proposed settlement funds are relevant to the claims and remaining defenses in this case to overcome the privilege.

6. PRA171-3671-3676 [CD 87]

"This document is a November 16, 1998 email from Sarah E. Gegenheimer to a large group of White House personnel transmitting an internal background briefing paper for a Presidential tobacco event at the White House concerning the MSA, including a draft statement concerning the President's remarks about the MSA and draft press guidance." Rice Decl. at 9; see also Gonzales Decl. Ex. A at 3. Plaintiff asserts the presidential communications privilege and deliberative process privilege.

The Special Master recommends that the Court overrule the claims of privilege. First, although the presidential communications privilege applies to both predecisional and postdecisional presidential communications, In re Sealed Case, 121 F.3d at 745, there is no indication from an in camera review that the communication was authored or received by White House advisors for the purpose of formulating advice to be given to the President. Id. at 752. The document begins: REDACTED PRA171-3673. The document continues with REDACTED REDACTED, and appears to have been sent to the recipients for informational purposes only and does not call for direct presidential decisionmaking. Second, the deliberative process privilege does not apply to this document because the communication reflects established agency policy and, therefore, is not predecisional.

7. PRA171-3753-3758 [CD 90]

"This document is a November 16, 1998 email from Amy Weiss to Sarah H. Bianchi transmitting the document described in Challenged Document #87." Rice Decl. at 9. Plaintiff asserts the presidential communications privilege and deliberative process privilege.

The Special Master recommends that the Court overrule the claims of privilege for the same reasons given for Challenged Document #87. The November 16, 1998 email forwarding the attachment supports this recommendation. Ms. Weiss writes: REDACTED REDACTED. PRA171-3753.

8. PRA171-4025-4027 [CD 95]

"This document contains two December 10, 1998 emails: (a) from William G. White, Program Examiner, Health/Personnel, OMB, to Daniel Mendelson, Associate Director, Health/Personnel, OMB, and Christopher C. Jennings, Deputy Assistant to the President for Health Policy, Domestic Policy Council (DPC), with copies to Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, Mark E. Miller, Chief, Health Financing, Health/Personnel, OMB, Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, and Anne E. Tumlinson, Program Examiner, Health/Personnel, OMB, providing his opinion on the interpretation of the provision in the MSA concerning the offset for federal tobacco-related legislation, and suggesting that legal staff at HHS, OMB, or elsewhere be contacted for an analysis of the intent and meaning of the provision; and (b) from Mr. Jennings to Sarah A. Bianchi, Office of the Chief Domestic Policy Advisor to the Vice President, Office of the Vice President (OVP), forwarding (a)." Locke Decl. at 7. Plaintiff asserts the attorney-client privilege and deliberative process privilege.

The Special Master recommends that the Court overrule the claim of attorneyclient privilege. There is no indication that the email reveals confidential client communications made for the purpose of seeking the legal advice of counsel. Mr. White, the author of the second email, is a Program Examiner with OMB. Although Mr. White remarks that, REDACTED REDACTED PRA171-4026, there is no indication that this information was actually shared with counsel for the purpose of obtaining a legal opinion on the interpretation of the provision.

The Special Master recommends that the Court sustain the claim of deliberative process privilege. It appears from an in camera review that the document is predecisional to a government position concerning an MSA provision REDACTED REDACTED. PRA171-4025. The document is deliberative in that it reflects the personal opinions of Mr. White. The Special Master does not believe that this email, concerning whether the provision REDACTED REDACTED is sufficiently relevant to Joint Defendants' claims of need.

9. PRA171-4035-4037 [CD 96]

This document is a duplicate of Challenged Document #95, except that the second forwarding email is December 11, 1998 from Christopher C. Jennings, Deputy Assistant to the President for Health Policy, DPC, to Devorah H. Adler, Assistant Director for Health Policy, DPC. Locke Decl. at 7. Plaintiff asserts the attorney-client and deliberative process privileges.

For the same reasons given for Challenged Document #95, the Special Master recommends that the Court overrule the claim of attorney-client privilege and sustain the claim of deliberative process privilege. In addition, the Special Master does not believe that the communication is sufficiently relevant to Joint Defendants' claims of need.

10. PRA171-4073-4074 [CD 100]

"This document is a July 15, 1997 email from Elizabeth Drye to Jerold R. Mande, Bruce N. Reed, Elena Kagan, and Michelle Crisci transmitting guidance for the President in answering possible questions concerning the June 1997 proposed tobacco settlement." Plaintiff asserts the presidential communications and deliberative process privileges. Gonzales Decl. Ex. A at 3.

The Special Master recommends that the Court sustain in part and overrule in part the claim of presidential communications privilege. The first page of the email is merely transmittal information and an unreadable hex dump and is not privileged. The second page is a communication from Ms. Drye, Chief of Staff, DPC, EOP, to high-level presidential advisors in the course of advising the President regarding the 1997 proposed settlement, and proposes possible statements to be given by the President himself: REDACTED REDACTED. Page PRA171-4074 is therefore presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that similar information is not available from other sources with due diligence because the QA were created for public discourse concerning the tobacco settlement.

11. PRA171-4082-4084 [CD 103]

"The withheld portion of this document consists of: (1) two July 10, 1998 emails: (a) Fred DuVal to Cynthia A. Rice requesting Ms. Rice's description of the tobacco talks between the attorneys general and the tobacco industry and advising that he will provide additional information on this matter; and (b) Ms. Rice to Mr. DuVal, forwarding (i) press guidance and (ii) the weekly report for the President on the issue; and (2) the second paragraph of the `Background' part of the press guidance, which contains the internal Administration view as to how the Administration should proceed if there is an agreement between the states and the tobacco industry." Rice Decl. at 10. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for the withheld portions, which are pages PRA171-4082 and the final paragraph of PRA171-4084, as they were authored and received by high-level members of the WHO and DPC who have responsibility for advising the President on certain issues, including tobacco, through the weekly report sent to the President and press guidance. The withheld portions are presumptively privileged, and the Special Master does not believe that Joint Defendants have shown need to overcome the privilege in that they have not demonstrated that this information is directly relevant to issues that are expected to be central to the trial.

12. PRA171-4135-4135 [CD 108]

"This document is a September 17, 1997 email from Bruce N. Reed to Toby Donenfeld offering his opinion as to how the Vice President should address the tobacco advertising issue at an upcoming event." Gonzales Decl. Ex. A at 4. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. The email from Mr. Reed to Mr. Donenfeld, from the Office of the Chief Domestic Policy Advisor for the Vice President, was prepared in the course of advising the Vice President. The subject of the email is REDACTED REDACTED and Mr. Reed states that, REDACTED REDACTED. In Report and Recommendation #164, the Special Master cited this Circuit Court's admonition that the "presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President,"In re Sealed Case, 121 F.3d at 752, and, therefore limited the applicability of the privilege to documents that ultimately called for Presidential decisionmaking, not decisionmaking of the Vice President or other high-ranking officials. Thus, the presidential communications privilege should not apply here.

The Special Master recommends that the Court sustain the claim of deliberative process privilege. The document is predecisional to the adoption of policy on advertising issues in the tobacco settlement and contains the suggestions of Mr. Reed.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Hence, according to Joint Defendants, "[t]o the extent these documents reveal such discussions or analyses concerning tobacco advertising these documents are relevant to the claims and defenses in this litigation, including `laches,' `waiver,' `estoppel,' `unclean hands,' ` in pari delicto,' and First Amendment defenses." Id. at 22. The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto in Order # 476. Moreover, while advertising is addressed in this email, the Special Master does not believe that this document is sufficiently relevant to Joint Defendants' First Amendment assertions to justify overcoming Plaintiff's interest in its privilege.

13. PRA171-4341-4345 [CD 124]

"This document is a July 28, 1997 email from Peter R. Orszag to Cristian J. Santesteban, forwarding, for review and comment, a draft statement entitled `The Tobacco Settlement and Incentives to Develop Reduced-Risk Tobacco Products,' which provides background information on the tobacco settlement, outlines the requirements and incentives of the new provisions as they relate to the tobacco industry, and offers options for Administration proposals/actions in this area." Rice Decl. at 10. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege for page PRA171-4341 as the page only contains transmittal information and an unreadable hex dump. The Special Master recommends that the Court sustain the privilege for pages PRA171-4342-4345 as they are predecisional to the adoption of policy or a position by the Executive branch regarding the tobacco settlement and discuss REDACTED REDACTED.

Joint Defendants assert that documents relating to "safer" or "less hazardous" cigarettes "likely contain discussions or analyses of Joint Defendants' current and historical product innovation and research; the relative health benefits of low-tar cigarettes; and/or the impact proposed federal legislation, regulation and/or settlements may have on product innovation and research, including whether to provide incentives for the development of `less-hazardous' tobacco products." Mot. App. B at 26. Thus, according to Joint Defendants, "these documents are directly relevant to the Government's RICO allegations and Joint Defendants' affirmative defenses, such as `unclean hands,' ` in pari delicto,' `laches' and `equitable estoppel.'" Id. at 26-27.

The Special Master believes that Joint Defendants have shown a need for this document as communications concerning reduced-risk tobacco products are relevant to Plaintiff's allegations that "Joint Defendants' development, advertising and marketing of low-tar cigarettes is part of an ongoing civil RICO conspiracy to defraud consumers." Mot. App. B at 26, citing Pl.'s FOF at § IV.D ¶¶ 870-1212. In addition, "[d]ocuments discussing programs or policies designed to provide economic incentives for the creation of less hazardous cigarette products . . . are especially relevant in light of the Government's expressed desire to seek `the imposition of the Less Hazardous Cigarette Project remedy that is detailed in the expert report of Dr. Franklin M. Fisher . . .'" Id. at 26 n. 18, quoting Pl.'s Fourth Set of Cont. Interrogs. at 23; Report of Professor Franklin M. Fisher (Nov. 15, 2001). Additionally, the discussions here are not available to Joint Defendants from other sources and the Special Master believes that the release of this document is not likely to create a chilling effect on future EOP discussions. The Special Master therefore recommends that the Court order Plaintiff to produce this document to Joint Defendants.

14. PRA171-4405-4406 [CD 130]

"The withheld portion of this document is a May 8, 1998 email from Jake Siewert to Melissa G. Green offering his opinion as to whether a named senior White House official should be made aware of the released portion of this document." Rice Decl. at 11. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The withheld portion is an email on page PRA171-4405 that reads: REDACTED REDACTED. "Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States Gas, 617 F.2d 866. The email does not suggest an agency position on an issue and the content, with the exception of the named White House official, is already disclosed in the declaration of Ms. Rice. The Special Master does not believe that the purposes of the privilege would be served by protecting this email from discovery.

15. PRA171-4471-4475 [CD 136]

"This document is September 16, 1997 draft press guidance dated September 16, 1997 regarding the Administration's overall assessment of the proposed tobacco settlement, its opinion of the proposed agreement's shortfalls, and its proposals for changes in and additions to the proposed agreement." Rice Decl. at 11. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional because it is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and deliberative in that it is a proposal for the press guidance. However, the Special Master believes that Joint Defendants need for the single QA on page 4471 that begins with the question, REDACTED REDACTED outweighs Plaintiff's interest in maintaining the privilege. The communication is relevant to projected decreases in youth smoking and is not candid or personal in nature.

16. PRA171-4559-4559 [CD 139]

"This document is a June 5, 1998 email from Cynthia A. Rice to Toby Donenfeld providing her suggestions for responding to a question as to the effectiveness of the 1997 proposed tobacco settlement." Rice Decl. at 11. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege as the document relays a suggestion by Ms. Rice to Mr. Donenfeld and is predecisional to formulating a response on the effectiveness of the tobacco settlement. The Special Master does not believe that this one sentence regarding the effectiveness of the 1997 proposed settlement is sufficiently relevant to the claims and defenses in this action to justify disclosure.

17. PRA172-0690-0691 [CD 217]

"This document consists of two emails: (a) August 6, 1997, from Stuart R. Kasdin, Program Examiner, Agriculture Branch, OMB, to Joe Glauber, Chief Economist, Department of Agriculture, offering his opinions concerning alternatives to tobacco farmer quota buy-out options and suggesting several options; and (b) from August 19, 1997, Mr. Kasdin to Keith O. Fuglie, Senior Economist, Council of Economic Advisers (CEA), forwarding (a)." Locke Decl. at 7; Stone Decl. at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege as the document is predecisional to the adoption of agency policy on a tobacco farmer buyout and deliberative in that Mr. Kasdin proposes several options for consideration.

Joint Defendants contend that documents pertaining to "the Government's longstanding support of domestic tobacco farmers" are relevant to their equitable affirmative defenses. Mot. App. B at 23. Because the Court dismissed these defenses in Order #476, the Special Master does not believe that Joint Defendants can show a need for this document.

18. PRA172-0692-0692 [CD 218]

"This document, which is part of the Administration's views of the 1997 proposed tobacco settlement, is a July 2, 1997 email from Timothy J. Brennan to Christian [sic] J. Santesteban, Sarah J. Reber, and Charles F. Stone, offering his opinions concerning the effect of cigarette taxes on the demand for low-price, off-brand cigarettes." Gonzales Decl. Ex. A at 4. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the tobacco settlement and deliberative in that it offers the personal opinions of Mr. Brennan. Further, Joint Defendants have not shown that communications discussing the effect of cigarette taxes on the demand for low-price, off-brand cigarettes are relevant to the remaining claims and defenses in this litigation.

19. PRA172-0693-0694 [CD 219]

"This document, which is a predecessor to Challenged Document #217, consists of two emails: (a) June 30, 1997, from Stuart R. Kasdin, Program Examiner, Agriculture Branch, OMB, to Joe Glauber, Chief Economist, Department of Agriculture, USDA, forwarding the options and others Mr. Kasdin later included in Challenged Document # 217, requesting the timing of USDA's analysis of these options and offering information related to that analysis; and (b) from July 1, 1997, Mr. Kasdin to David L. Sunding, Senior Economist, CEA, forwarding (a) and explaining his interest and the interest of others at OMB in the issue." Locke Decl. at 8. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. As with Challenged Document #217, this document is predecisional to a position taken by the Executive Branch on the tobacco settlement and deliberative in that it offers the personal opinions of Mr. Kasdin. Further, the Special Master does not believe that Joint Defendants have shown that communications concerning buy-out options are sufficiently relevant to the remaining claims and defenses in this litigation to warrant disclosure.

20. PRA172-0699-0699 [CD 220]

"This document is a September 19, 1997 email from Stuart R. Kasdin, Program Examiner, Agriculture Branch, OMB, to Keith O. Fuglie, Senior Economist, CEA, offering his opinion as to the merits of a possible tobacco farmer quota buy-out, including how to determine the amount to be paid to those who are bought out." Locke Decl. at 8. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like other documents addressing the potential tobacco farmer quota buy-out, the document is predecisional to the adoption of agency policy on this issue and deliberative in that Mr. Kasdin relays his personal opinion that REDACTED REDACTED. PRA172-0699.

Joint Defendants assert that communications pertaining to the Government's support of domestic tobacco farmers are relevant to their equitable affirmative defenses, Mot. App. B at 23. As the Court has since dismissed these defenses, see Order #476, the Special Master does not believe that Joint Defendants can show a need for this document.

21. PRA172-0700-0700 [CD 221]

"This document is a July 16, 1997 email from Ravi K. Sandill to Cristian J. Santesteban, reporting on his research into innovation by tobacco companies, including on further information to be obtained, and soliciting guidance with respect to pursuing one source of further information." Gonzales Decl. Ex. A at 5. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege for this email, which is factual and informative in nature. In the email, Mr. Sandill reports that REDACTED REDACTED. PRA172-0700. Mr. Gonzales, however, does not indicate how this communication is related to the generation of agency policy.

22. PRA172-0704-0706 [CD 222]

"This document consists of four emails: (a) April 22, 1997, Timothy J. Brennan to Jeffrey A. Frankel, Alicia H. Munnell, Sarah J. Reber, and Cristian J. Santesteban, discussing an article concerning the anticipated June 1997 proposed tobacco settlement and offering his preliminary opinions as to how the settlement may affect cigarette prices (offering different opinions for different settlement scenarios); (b) April 22, 1997, Mr. Brennan to Charles F. Stone, forwarding (a); (c) June 23, 1997, Mr. Stone to Mr. Brennan, forwarding (a) and (b) back to Mr. Brennan; and (d) June 23, 1997, Mr. Brennan to Mr. Stone, responding to (c) thanking Mr. Stone for finding the original e-mails, offering a suggested edit to his analysis, and acknowledging an interest in beginning a re-consideration of the settlement." Gonzales Decl. Ex. A at 5. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to a policy or position by the Executive Branch on the proposed tobacco settlement and deliberative in that it relays the personal opinions of Mr. Brennan regarding how the settlement might affect tobacco prices. Further, Joint Defendants have not shown that communications concerning REDACTED REDACTED are relevant to the remaining claim and defenses in this litigation.

23. PRA172-0710-0711 [CD 224]

"This document is an April 24, 1997 email from Timothy J. Brennan to Janet L. Yellen, Alicia H. Munnell, Jeffrey A. Frankel, Christopher J. Ruhm, Phillip B. Levine, and Charles F. Stone, providing his analysis/opinions concerning several economic issues relating to cigarette smoking, including calculating tobacco-related health care costs, the costs and merits of not providing tobacco-related health care coverage, and the merits and purposes of taxing tobacco sales." Gonzales Decl. Ex. A at 5. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to agency policy on the relationship between health care costs and smoking and contains the personal opinions of Mr. Brennan. PRA172-0710 REDACTED REDACTED. Further, Joint Defendants have not shown that communications concerning REDACTED REDACTED are relevant to the remaining claim and defenses in this litigation. In addition, the email is sufficiently candid and personal in nature that the possibility of future timidity by government employees is significant.

24. PRA172-0717-0717 [CD 225]

"This document contains two emails: (a) September 16, 1997, from Robert J. Pellicci, Legislative Analyst, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB, to Jacob J. Lew, Deputy Director, OMB, Sally Katzen, Administrator, Office of Information and Regulatory Affairs (OIRA), OMB, Joshua Gotbaum, Executive Associate Director, OMB, and T.J. Glauthier, Associate Director, Natural Resources, Energy, and Science, OMB, with copies to a large group of OMB personnel, discussing how to handle proposed USDA testimony concerning the effects of the proposed June 1997 tobacco settlement on tobacco farmers and crop subsidies; and (b) September 17, 1997, from Stuart R. Kasdin, Program Examiner, Agriculture Branch, OMB, to Margaret A. Malanoski, Policy Analyst, Natural Resources, Energy and Agriculture Branch, OIRA, OMB, and Keith O. Fuglie, Senior Economist, CEA, forwarding (a) and offering his speculation as to whether the hearing at which the USDA testimony is expected will be held." Locke Decl. at 8. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the formulation of USDA testimony on the effects of the tobacco settlement and deliberative in that it reflects the give-and-take of the consultative process. See PRA172-0717 REDACTED REDACTED. While Joint Defendants have asserted that discussions regarding assistance to tobacco farmers are relevant to their affirmative equitable defenses, see Mot. App. B at 23, the Special Master notes that these defenses have since been dismissed from this case; accordingly, the discussion here is not sufficiently relevant to the remaining claims and defenses to warrant disclosure.

25. PRA172-0724-0725 [CD 226]

"This document consists of two July 8, 1997 emails: (a) Jonathan Gruber to Sarah J. Reber, critiquing a report from USDA on the June 1997 proposed settlement, offering his views as to what further analysis and research USDA should do with respect to the effect of the proposed settlement on tobacco farmers, and giving his own preliminary views on that issue; and (b) Ms. Reber to Charles F. Stone, forwarding (a)." Gonzales Decl. Ex. A at 5. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to USDA policy on the effects of the tobacco settlement and deliberative in that relays the personal views and suggestions of Mr. Gruber: REDACTED REDACTED. PRA172-0724. Further, in camera review does not indicate that the emails are sufficiently relevant to Joint Defendants' claims of need to warrant disclosure, particularly as they argue that discussions pertaining to assistance to tobacco farmers are relevant to the affirmative equitable defenses, which have since been dismissed from this case.

26. PRA172-0727-0731 [CD 227]

"This document is a July 21, 1997 email/internal note by Timothy J. Brennan offering his detailed analysis/opinion concerning the effect of three provisions in the June 1997 proposed tobacco settlement — payments by the cigarette companies to governments; lookback surcharges; and liability caps — that are expected to affect the price and, perhaps, the competitiveness of domestic cigarette sales. Mr. Brennan also includes his predictions of the possible effects of these provisions." Gonzales Decl. Ex. A at 5-6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the tobacco settlement and deliberative in that it reflects personal opinions of Mr. Brennan as to the effect of certain provisions in the settlement. However, the Special Master believes that Joint Defendants' claims of need are sufficiently relevant to one portion of this document concerning the youth smoking surcharge, which is contained on pages PRA172-0730-0731. There is no indication that this information is available from other sources, or that the communication is so personal in nature that the possibility of future timidity by government employees would be significant. Therefore, the Special Master recommends that the Court order Plaintiff to produce the portion of the document that pertains to the youth smoking surcharge to Joint Defendants.

27. PRA172-0735-0735 [CD 230]

"This document is a July 1, 1997 email from Cristian J. Santesteban to Charles F. Stone (a) relating and discussing concerns expressed by Jeffrey Harris about the possible effect of the 1997 proposed tobacco settlement on advertising costs and payments to states and possible upcoming regulatory dangers and (b) offering his concerns about the provisions relating to developing less dangerous products." Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the tobacco settlement and deliberative in that it reflects the personal opinions of Mr. Harris and Mr. Santesteban: REDACTED REDACTED. PRA172-0735.

However, the Special Master believes that Joint Defendants' have shown a sufficient need for a portion of this document to overcome the privilege. Joint Defendants assert that discussions concerning the effect "regulation/or settlements may have on product innovation and research" of "less-hazardous" tobacco products are relevant to Plaintiff's allegations "that Joint Defendants' development, advertising and marketing of low-tar cigarettes is part of an ongoing civil RICO conspiracy to defraud consumers." Mot. App. B at 26, citing Pl.'s FOF at § IV.D ¶¶ 870-1212. The last paragraph of the email concerns provisions in the 1997 proposed settlement relating to the development of less dangerous products. There is no indication that this information can be obtained elsewhere or that the concern expressed by Mr. Santesteban is "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866. Accordingly, the Special Master recommends that the Court order Plaintiff to produce the last paragraph of this email, beginning with REDACTED REDACTED to Joint Defendants.

28. PRA172-0745-0746 [CD 234]

"This document is two emails from Jonathan Gruber to Charles F. Stone: (a) July 24, 1997, offering both a critique of and suggested edits to Mr. Stone's draft paper concerning the 1997 proposed tobacco settlement and general comments/opinions as to how the 1997 proposed tobacco settlement should be further assessed; and (b) August 3, 1997, re-transmitting (a)." Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the comments and suggestions of Mr. Gruber. See PRA172-0745 REDACTED REDACTED. Further, the Special Master does not believe that Joint Defendants have shown that this document is sufficiently relevant to the remaining claims and defenses in this litigation to overcome Plaintiff's privilege.

29. PRA172-0753-0753 [CD 238]

"This document contains two November 25, 1998 emails: (a) from Patrick G. Locke, Policy Analyst, Budget Review, OMB, to Steven N. Braun, Director of Macroeconomic Forecasting, CEA, with copies to Mark A. Wasserman, International Economist, Economic Policy, OMB, Steven E. Cahill, Policy Analyst, Budget Analysis Branch, Budget Analysis and Systems Division, Budget Review, OMB, Robert B. Anderson, Economist, Economic Policy, OMB, and Douglas A. Norwood, Fiscal Economist, Budget Analysis Branch, Budget Analysis and Systems Division, Budget Review, OMB, offering comments and suggestions and asking for further information, regarding recently-run economic forecast tables, some of which is non-responsive, including raising questions concerning the MSA's effect on indirect business taxes and the Consumer Price Index; and (b) from Mr. Braun to Joseph J. Minarik, Associate Director, Economic Policy, OMB, forwarding (a)." Locke Decl. at 9. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the development of the forecast tables and deliberative in that it reflects suggestions and questions by Mr. Locke. See PRA172-0753 REDACTED REDACTED. Further, the Special Master does not believe Joint Defendants have shown need for this document as questions concerning the MSA's effect on certain economic forecast tables are not relevant to the remaining claims and defenses in this litigation.

30. PRA172-0777-0777 [CD 241]

"This document is a July 1, 1997 email from Sarah J. Reber to Timothy J. Brennan, Cristian J. Santesteban, Charles F. Stone, and Jonathan Gruber discussing the common parameters for the tobacco calculations to be used by the Executive Branch, including especially the CEA and Treasury, in the analysis of the 1997 proposed settlement agreement." Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the suggestions of Ms. Reber with respect to the tobacco calculations. See PRA172-0777 REDACTED REDACTED. Further, in camera review does not support that this document is sufficiently relevant to the claims of need made by Joint Defendants.

31. PRA172-0778-0778 [CD 242]

"This document is a July 14, 1997 email from Cristian J. Santesteban to Sarah J. Reber and Charles F. Stone, offering his preliminary observations as to the effect of the 1997 proposed tobacco settlement's restrictions on advertising on tobacco companies and cigarette consumption." Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the personal opinions of Mr. Santesteban regarding the provisions of advertising: REDACTED REDACTED. PRA172-0778.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Joint Defendants contend that such documents are relevant to their affirmative equitable defenses, which are no longer viable, as well as their First Amendment defenses. The Special Master believes that this document is relevant to their First Amendment defenses as it discusses the impact of advertising restrictions on consumption. Further, the Special Master does not believe that the document is "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866. Thus, the document should not be protected from discovery.

32. PRA172-0784-0784 [CD 243]

"This document is a July 10, 1997 email from Mark J. Mazur to Jerold R. Mande, with copies to Paul J. Weinstein, Elena Kagan, Elizabeth Drye, and Bruce N. Reed, discussing the level of support for a proposal to deny tax deductions for tobacco advertising and raising potential problems with such a proposal." Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to adoption of policy on the proposal to deny tax deductions, and deliberative in that it reflects the personal views of Mr. Mazur: REDACTED REDACTED. PRA172-0784.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products are relevant to their defenses of laches, waiver, estoppel, unclean hands, in pari delicto, and First Amendment defenses. Mot. App. B at 22. The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed these equitable defenses in Order # 476. Further, the Special Master does not believe that this document is relevant to Joint Defendants' First Amendment defenses, as the discussion pertains to tax deductions for advertising and tax policy, and not to the impact that tobacco use has on youth consumption, or any constitutional rights Joint Defendants have to advertise their products.

33. PRA172-0785-0785 [CD 244]

"This document is a July 24, 1997 note by Christian [sic] J. Santesteban offering suggestions for encouraging innovation by tobacco companies in developing less hazardous cigarettes." Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to Executive Branch policy on encouraging the development of less hazardous cigarettes and deliberative in that it reflects the ideas and suggestions of Mr. Santesteban, including REDACTED REDACTED. PRA172-0785.

Joint Defendants assert that documents relating to "safer" or "less hazardous" cigarettes "likely contain discussions or analyses of Joint Defendants' current and historical product innovation and research; the relative health benefits of low-tar cigarettes; and/or the impact proposed federal legislation, regulation and/or settlements may have on product innovation and research, including whether to provide incentives for the development of `less-hazardous' tobacco products." Mot. App. B at 26. Hence, according to Joint Defendants, "these documents are directly relevant to the Government's RICO allegations and Joint Defendants' affirmative defenses, such as `unclean hands,' ` in pari delicto,' `laches' and `equitable estoppel.'" Id. at 26-27.

The Special Master believes that Joint Defendants' have demonstrated a sufficient need for this document as the development of less hazardous cigarettes relates to Plaintiff's RICO allegations and in camera review does not indicate that the document is "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866.

34. PRA172-0840-0840 [CD 249]

"This document consists of two January 30, 1998 emails: (a) from Joseph J. Minarik, Associate Director, Economic Policy, OMB, to Janet L. Yellen, Chair, CEA, with a copy to Michele Jolin, Chief of Staff, CEA, offering edits to a draft chapter of the 1998 Economic Report of the President, some of which is non-responsive, including edits concerning the characterization of the Administration's position on the 1997 proposed tobacco settlement and explaining the basis for his suggested change; and (b) from Ms. Jolin to Charles F. Stone, Senior Economist, CEA, James Michael Treadway, Consulting Editor, CEA, and Jeremy B. Rudd, Senior Economist, CEA, forwarding (a)." Locke Decl. at 9. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. As a draft, the document is predecisional to the final 1998 Economic Report and deliberative in that it reflects the comments and suggestions of an OMB employee: REDACTED REDACTED. PRA172-0840. Further, the Special Master does not believe that Joint Defendants have shown need for this document as in camera review does not indicate that this document sufficiently relates to Joint Defendants' claims of need, and as Joint Defendants do have access to the final Economic Report and have not established the relevancy of comments to the draft.

35. PRA172-0845-0845 [CD 250]

This document consists of two September 2, 1997 emails: (a) Maria J. Hanratty to Amy N. Finkelstein and Sanders D. Korenman, suggesting trying to link a tobacco money initiative with a community development initiative; and (b) Ms. Finkelstein to Sarah J. Reber, forwarding (a) and asking for Ms. Reber's reaction to the proposal in light of Ms. Finkelstein's understanding of the proposed settlement's provisions. Gonzales Decl. Ex. A at 6. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to Executive Branch policy on uses for tobacco money and deliberative in that it reflects the suggestions of Ms. Hanratty, REDACTED REDACTED PRA172-0845, as well as a request by Ms. Finkelstein to Ms. Reber for her view of the proposal. Further, in camera review does not indicate that the emails are relevant to Joint Defendants' claims of need. The discussion here pertains to possible use of tobacco revenues, which Joint Defendants have argued are relevant to their now-dismissed affirmative equitable defenses.

36. PRA172-0846-0848 [CD 250A]

"This documents [sic] consists of two undated (but most likely July-September 1997) notes from Jonathan Gruber discussing a number of issues related to the 1997 proposed tobacco settlement: (a) to Charles F. Stone, relating a conversation he had with Larry Summers concerning a memo presenting an overview of the 1997 proposed tobacco settlement, including specific suggestions as to how to re-write the memo to present the economic effects of the proposed settlement; and (b) to John Kitchen and Mr. Stone, relating information and analysis concerning the possible effects of proposed tobacco company penalties (to be used in analyzing the 1997 proposed tobacco settlement), and also discussing how best to structure penalties so as not to permit excess profits and suggesting two kinds of options for taxes/assessments to achieve the desired effects of reducing youth smoking (with Mr. Gruber's opinions as to these issues, and his suggestions as to how to proceed in the continuing analysis)." Gonzales Decl. Ex. A at 7. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the give-and-take of the consultative process among Dr. Gruber and other agency employees, as well as specific options proposed by Dr. Gruber for taxes/assessments to reduce youth smoking. Further, in camera review does not indicate that the communication is sufficiently relevant to Joint Defendants' claims of need.

37. PRA172-0849-0849 [CD 251]

"This document is an August 25, 1997 email from Jerold R. Mande to Hugh T. Connelly and Patrick G. Locke, with copies to a group of White House personnel, asking that Messrs. Connelly and Locke prepare analyses of several different excise tax/lookback penalty scenarios (to achieve reductions in youth smoking)." Rice Decl. at 11. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the give-and-take among EOP employees in forming that position. Mr. Mande requests: REDACTED REDACTED PRA172-0849. The Special Master does not believe that Joint Defendants can show a need for this document as Mr. Mande only requests analyses of several excise tax/lookback penalty scenarios — the actual analyses are not part of the document.

38. PRA172-0856-0856 [CD 254]

"This document is a July 10, 1997 email from Jerold R. Mande to Bruce N. Reed, with copies to Mark J. Mazur, Elizabeth Drye, Paul J. Weinstein, Jr., and Elena Kagan, offering his views as to whether it would be feasible to eliminate the tax deductibility of tobacco advertising. Mr. Mande also suggests a related topic for consideration." Rice Decl. at 12. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch decision on whether to eliminate the tax deductibility of tobacco advertising and deliberative in that it reflects the personal views of an EOP employee: REDACTED REDACTED. PRA172-0856.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products are relevant to the defenses in this litigation, including laches, waiver, estoppel, unclean hands, in pari delicto, and First Amendment defenses. Mot. App. B at 22. The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed these equitable defenses in Order # 476 and because the document is not relevant to Joint Defendants' First Amendment defenses. Further, in camera review does not support that the document is relevant to Plaintiff's claims in this litigation.

39. PRA172-0857-0857 [CD 255]

"This document is a July 1, 1997 email from Sarah J. Reber to Jonathan Gruber offering her views as to what efforts should be undertaken in connection with the review of the 1997 proposed tobacco settlement, specifically with respect to how the funds paid by the tobacco companies should be spent. Ms. Reber also solicits Mr. Gruber's view on a related Medicare issue." Gonzales Decl. Ex. A at 7. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the suggestions of an EOP employee: REDACTED REDACTED. PRA172-0857. Further, the Special Master does not believe that communications concerning how the funds paid by the tobacco companies under the 1997 proposed settlement should be spent are relevant to Joint Defendants' claims of need.

40. PRA172-0859-0859 [CD 256]

"This document consists of two July 10, 1997 emails: (a) from Victoria A. Wachino, a Senior Adviser in the Office of the Director at OMB, to Joseph J. Minarik, Associate Director, Economic Policy, OMB, with copies to a group of OMB personnel, responding to his request for information on OMB Health Division and VA branch programs that are likely to be affected by a reduction in smoking; and (b) Mr. Minarik to Charles F. Stone, Senior Economist, CEA, forwarding (a)." Locke Decl. at 9. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the give-and-take among OMB employees. Ms. Wachino responds to a request from Mr. Minarik regarding the programs that would likely be affected by a reduction in smoking. Further, in camera review does not indicate that such discussions are relevant to Joint Defendants' claims of need.

41. PRA172-0868-0868 [CD 257]

"This document is an April 22, 1997 email from Jeffrey A. Frankel to Timothy J. Brennan, with copies to Alicia H. Munnell and Charles F. Stone, soliciting their view as to the likely effect of the anticipated settlement on cigarette prices." Gonzales Decl. Ex. A at 7. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the give-and-take of the consultative process in formulating this position. Mr. Frankel asks: REDACTED REDACTED. PRA172-0868. While this document does address the impact of increased cigarette prices, it does not relate to the impact of cigarette price increases on youth smoking; therefore, the email is not sufficiently relevant to Joint Defendants' claims of need to warrant overcoming Plaintiff's privilege claim.

42. PRA172-0880-0880 [CD 260]

"This document is a July 9, 1997 email from Jeffrey Harris to Cristian J. Santesteban explaining his preliminary calculations concerning possible tobacco company profits and penalty payments made under the 1997 proposed tobacco settlement." Gonzales Decl. Ex. A at 7. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the preliminary calculations of Mr. Harris. However, the Special Master believes that Joint Defendants' have sufficient need for this document as it is relevant to assumptions and calculations of Joint Defendants' profits, there is no indication that the information is available from other sources, and the document is not candid or personal in nature.

43. PRA172-0907-0910 [CD 263]

"This document is a February 6, 1998 email from Charles F. Stone to Keith O. Fuglie transmitting draft press guidance concerning whether the Administration supports the 1997 proposed tobacco settlement and the relationship of that settlement to proposed tobacco legislation. In his email, Mr. Stone includes his brief characterization of this issue." Gonzales Decl. Ex. A at 7. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Pages PRA172-0907-0909 contain an unreadable hex dump and other nonsubstantive transmittal information. Page PRA172-0910, however, is entitled to protection because, as a draft, it is predecisional to the final press guidance on the proposed tobacco settlement and is deliberative in that it reflects the personal opinions of the writer(s) and not Executive Branch policy. Further, Joint Defendants cannot show sufficient need for the draft press guidance as the information would be available from other sources, and as it addresses the Administration's views of the Economic Report of the President, which Joint Defendants also have available to them.

44. PRA172-0936-0936 [CD 265]

"This document is a July 24, 1997 email from Joseph J. Minarik, Associate Director, Economic Policy, OMB, to Charles F. Stone, Senior Economist, CEA, with a copy to Jonathan D. Gruber, Deputy Assistant Secretary, Treasury, offering his preliminary opinion as to the likely effect of the 1997 proposed tobacco settlement on tobacco company profits and market power; possible alternatives to the proposed settlement; and how the Administration generally should react to the proposal." Locke Decl. at 10. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects the personal views and opinions of Mr. Minarik: REDACTED REDACTED. PRA172-0936. Further, the Special Master does not believe that this document is sufficiently relevant to Joint Defendants' claims of need. In addition, the comments of Mr. Minarik are candid and personal in nature, such that public disclosure may stifle honest and frank communication within the agency in the future.

45. PRA172-0937-0937 [CD 266]

"This document is a July 7, 1997 email from Cristian J. Santesteban to Sarah J. Reber offering his suggested changes to an earlier version of Challenged Document #267, a paper being prepared by Ms. Reber entitled `Potential Behavioral Responses to the Proposed Tobacco Settlement.' (This is part of the CEA's analysis of the 1997 proposed tobacco settlement.)" Gonzales Decl. Ex. A at 8. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that it reflects suggestions by an EOP employee as to proposed changes to the analysis. Further, in camera review does not support that the document is relevant to Joint Defendants' claims of need concerning the remaining claims and defenses in this litigation.

46. PRA172-0938-0941 [CD 267]

"This document is a July 7, 1997 email from Sarah J. Reber to Jonathan Gruber transmitting and discussing briefly her re-draft of the paper entitled `Potential Behavioral Responses to the Proposed Tobacco Settlement.' This paper offers preliminary observations as to potential behavioral responses to the proposed settlement by the industry, consumers, governments, and lawyers." Gonzales Decl. Ex. A at 8. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0939 merely contains an unreadable hex dump and is not protected. Pages PRA172-0938 and 0940-0941 are predecisional to an Executive Branch position on the proposed tobacco settlement and deliberative in that they reflect the personal opinions of an EOP employee and not agency policy. Further, in camera review does not support that the document is relevant to Joint Defendants' claims of need concerning the remaining claims and defenses in this litigation.

47. PRA172-1799-1799 [CD 329]

"This document is a May 1, 1997 email from Julia R. Green to Lorraine McHugh providing an update on a senior staff meeting, including the President, and setting forth the President's instructions with respect to tobacco — what he wants to see in a proposed settlement between the states and the tobacco industry, including concerning children's health. (The other matters covered in the email are not responsive.)" Rice Decl. at 12. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege because the responsive portion of the document reflects presidential decisionmaking regarding the proposed settlement: REDACTED REDACTED. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the information is directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

48. PRA172-2114-2115 [CD 345]

"This document is a June 12, 1997 email from Barbara D. Woolley to Mark Hunker forwarding the portion of the weekly report concerning tobacco — update on the position of the Advisory Committee on Tobacco Policy and Public Health meeting and providing its position concerning a proposed tobacco settlement and proposed tobacco legislation concerning the right to sue tobacco companies for medical costs." Rice Decl. at 12. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication from Plaintiff or in camera review that the document was authored or received for the purpose of formulating advice to the President, nor is there any indication for whom the weekly report was prepared. In addition, the Special Master does not believe that the document is entitled to protection by the deliberative process privilege because the communication regarding tobacco is informational in nature, relaying the REDACTED REDACTED, not deliberative.

49. PRA172-2209-2209 [CD 350]

"This document is a June 20, 1997 email from Fred DuVal to Suzanne Dale transmitting a portion of the weekly report to the President, including concerning a status report on White House activities with respect to the tobacco settlement negotiations." Rice Decl. at 12. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was prepared by a high-level presidential advisor and sent to another White House Office employee for the purpose of formulating advice to the President on the proposed tobacco settlement. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

50. PRA172-2244-2244 [CD 352]

"This document is an April 17, 1997 email from John P. Hart to Suzanne Dale providing two entries to the weekly report to the President, including one concerning tobacco — status of tobacco settlement negotiations and statement by Minnesota Attorney General Humphreys." Rice Decl. at 13. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was prepared by a high-level presidential advisor and sent to another WHO employee for the purpose of formulating advice to the President on the proposed tobacco settlement. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

51. PRA172-2308-2308 [CD 358]

"This document is a December 16, 1996 email from Barry J. Toiv to a group of White House personnel reporting on an upcoming newspaper article on the tobacco industry's possible interest in settlement negotiations and seeking guidance as to how the White House should respond to a request from the reporter for interviews." Rice Decl. at 13. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. In camera review does not indicate that the document is deliberative in nature, "weighing the pros and cons of agency adoption of one viewpoint or another" on the formulation of policy. Coastal States Gas, 617 F.2d at 866. Instead, the document concerns who within the Administration to make available to the press for interviews: REDACTED REDACTED. PRA172-2308. Hence, the privilege should not apply.

52. PRA172-2353-2353 [CD 363]

"This document contains two June 3, 1997 emails: (a) Elena Kagan to Elizabeth Drye, repeating information she provided earlier about the DPC position concerning punitive damages and liability being considered as part of the proposed tobacco settlement between the states and the tobacco companies; and (b) Ms. Drye to April K. Mellody, forwarding (a)." Rice Decl. at 13. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. There is no indication that the document is predecisional or deliberative. Ms. Rice declares that the document reflects the DPC position concerning punitive damages and liability in the proposed tobacco settlement and in camera review supports the declaration. See PRA172-2353 REDACTED REDACTED. Thus, the document appears to reflect agency policy and not the personal opinion of Ms. Kagan.

53. PRA172-2425-2428 [CD 365] PRA172-2433-2437 [CD 366] PRA172-2438-2440 [CD 367] PRA172-2482-2484 [CD 370] PRA172-2488-2490 [CD 372] PRA172-3434-3436 [CD 448]

Challenged Document 365 "is a July 18, 1997 email from Elizabeth Drye to Elena Kagan, with a copy to Laura Emmett, forwarding a portion of a draft weekly report to the President from Bruce N. Reed concerning (a) meetings with tobacco industry lawyers and tobacco farmer representative regarding the 1997 proposed settlement; (b) Vice President meeting with tobacco industry whistleblowers; and (c) other tobacco-related developments." Rice Decl. at 13-14.

Challenged Document 366 "is a July 10, 1997 email from Elizabeth Drye to Laura Emmett and Cathy R. Mays, with a copy to Elena Kagan, forwarding a daily report to the White House Press Office concerning the upcoming announcement by the President concerning the 1997 proposed tobacco settlement Executive Branch review process." Rice Decl. at 14.

Challenged Document 367 "is a July 10, 1997 email from Cathy R. Mays to Jason S. Goldberg, with a copy to Elizabeth Drye, forwarding a report to the President on tobacco — Bruce N. Reed and HHS Secretary Shalala meeting with attorneys general and Matt Myers concerning the 1997 proposed tobacco settlement." Rice Decl. at 14.

Challenged Document 370 "is a March 13, 1998 email from Cynthia A. Rice to Laura Emmett and Elena Kagan, forwarding two tobacco-related draft report to the President items: (a) working with the Senate on proposed legislation concerning the FDA and comprehensive tobacco legislation; and (b) funding for tobacco counter-advertising campaigns." Rice Decl. at 14.

Challenged Document 372 "is a February 27, 1998 email from Cynthia A. Rice to Laura Emmett, with copies to Mary L. Smith, Andrea Kane, Thomas L. Freedman, and Diana Fortuna, forwarding a draft weekly report to the President item on negotiations with Sen. McCain concerning his legislation, including related to advertising issues/constitutional concerns." Rice Decl. at 15.

Challenged Document 448 "is a July 17, 1998 email from Cynthia A. Rice to Laura Emmett, with a copy to Cynthia Dailard, transmitting a draft weekly report to the President item concerning a possible states/tobacco company settlement and tobacco counter-advertising proposals." Rice Decl. at 15.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. A number of pages in these documents contain unreadable hex dumps and nonsubstantive transmittal information that are not entitled to protection. These pages are: PRA172-2425-2427 (CD 365); PRA172-2433-2436 (CD 366); PRA172-2438-2439 (CD 367); PRA172-2482-2483 (CD 370); PRA172-2488-2489 (CD 372); and PRA172-3434-3435 (CD 448).

The remaining pages of these documents, however, should be protected because high-level presidential advisors prepared the daily/weekly reports and sent them to other high-level presidential advisors for the purpose of formulating advice to the President on issues in those reports, including the proposed tobacco settlement. These pages are: PRA172-2428 (CD 365); PRA 172-2437 (CD 366); PRA172-2440 (CD 367); PRA172-2484 (CD 370); PRA172-2490 (CD 372); and PRA172-3436 (CD 448). These pages are presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that they likely contain information directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

54. PRA172-2671-2671 [CD 387]

"This document is an October 1, 1997 email from Jennifer D. Dudley to Christopher F. Walker, with a copy to Susan A. Brophy, conveying Bruce Reed's recommendation as to whether a letter from two senators should be answered." Rice Decl. at 15. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "The deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated. Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). There is no indication that this email, which states, REDACTED REDACTED concerns the formation of policy or that the purposes of the privilege would otherwise be served by protecting this document from discovery.

55. PRA172-2708-2708 [CD 393]

"This document contains two October 8, 1997 emails: (a) Fred DuVal to Cynthia M. Jasso-Rotunno seeking information on the position of an attorney general concerning the tobacco settlement; and (b) Ms. Jasso-Rotunno to Mr. DuVal, responding to (a) with her opinion as to the position of that attorney general and offering her further opinion as to possible Vice President contact with that attorney general." Rice Decl. at 15. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Ms. Rice does not provide any explanation of how this document relates to the deliberative process of an agency or the Executive Branch and in camera review does not independently indicate the predecisional and deliberative nature of this document.

56. PRA172-3514-3528 [CD 457]

"This document is a November 15, 1998 email from Cynthia A. Rice to Michael Waldman, forwarding a draft statement entitled "President Clinton will Declare State Tobacco Settlement a Step in the Right Direction and Call on Congress to Finish the Job" and draft press guidance concerning this statement." Rice Decl. at 16. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privilege. There is no indication that this communication calls for direct decisionmaking by the President.In re Sealed Case, 121 F.3d at 752. In addition, the deliberative process privilege should not apply because the emails indicate that the document is final.

B. Executive Branch 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

Mr. Locke explains that, "[f]ollowing the collapse of the 1997 proposed settlement agreement, the Clinton Administration, which earlier had been considering the need for comprehensive tobacco legislation, renewed its consideration of such legislation. At about the same time, Sen. McCain proposed his version of such legislation (the "McCain bill" or "McCain legislation"). This legislation (which included its own proposed "Master Settlement Agreement"), like the 1997 proposed settlement, provided that some or all of the funds to be paid by the tobacco companies would be paid to the United States." Locke Decl. at 10.

The Executive Branch, with OMB assuming a central role, undertook an analysis of the proposed legislation. Mr. Locke explains that "[t]he principal purposes of the review and evaluation of the proposed legislation, including the McCain bill, were to determine whether the United States should support or oppose the proposed legislation, propose changes to it, or propose its own legislation or regulations to effectuate or accompany the proposed legislation." Id. He further explains that "the purpose of the review and analysis of the proposed legislation always was (1) to assist the White House, OMB and the relevant Executive Branch agencies and offices in becoming familiar with and understanding the likely effects of the proposed legislation, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch should take with respect to the proposed legislation, including individual provisions, and to the need for other legislation or regulation."Id. at 10-11.

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

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

Mot. App. B at 13-14 (citations omitted). Joint Defendants argue that "[d]iscussions of the same or similar proposed remedies contained in these Challenged Documents are relevant to Joint Defendants', as well as the Court's, evaluation and analysis of their alleged efficacy." Id. at 14.

"Joint Defendants believe that these documents likely contain discussions and communications indicating that certain provisions of the proposed legislation . . . and hence certain injunctive relief sought by the Government in this case, conflict with the existing statutory and regulatory framework that Congress has carefully crafted for the United States Tobacco Industry." Id. In addition, "Joint Defendants believe that such discussions and communications indicate that certain provisions of the proposed legislation . . . violate fundamental constitutional principles, such as separation of powers and the First Amendment. Such discussions are clearly relevant to certain of Joint Defendants' affirmative defenses." Id. at 14-15.

Joint Defendants also believe that discussions regarding the impact the proposed legislation has on federal revenues "offer insight into the equity of the Government's requested injunctive relief in light of the Government's participation in, and profiting of, Joint Defendants' alleged RICO conspiracy, as well as what the Government believes was appropriately considered in determining proposed penalties, taxes, and assessments against the Tobacco Industry." Id. at 15.

Moreover, to the extent that the "documents contain discussions and communications assessing the impact cigarette price adjustments would have on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes[,] [s]uch discussions and communications could very well contradict claims or assumptions made by the Government's experts in this litigation." Id. at 16. Additionally, they claim as relevant discussions that "reflect on the legality or merit of proposed penalties and/or taxes that could impact the Tobacco Industry to such an extent as to cause an undesirable increase in cigarette smuggling, a runaway black market for cheap cigarettes, and/or bankruptcy of the Tobacco Industry." Id.

1. PRA171-1889-1890 [CD 2]

"This document is a March 5, 1998 email from Cynthia A. Rice to Mary L. Smith, Elena Kagan, Jerold R. Mande, Thomas L. Freedman, and Bruce N. Reed transmitting, explaining briefly the further work she intends to do on, and seeking review and comment on a draft paper entitled `Key Concerns about S. 1415 [McCain's tobacco legislation].' The attached draft paper presents Ms. Rice's proposals for the Administration's suggestions as to how the McCain proposed tobacco legislation should be amended and strengthened to accomplish one of its principal objectives — eliminating or reducing youth smoking." Rice Decl. at 17. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA171-1889 contains a non-deliberative email and a hex dump and does not qualify for protection. Page PRA171-1890, however, was authored and received by high-level presidential advisors within the EOP for the purpose of formulating advice to the President on what position the Executive Branch should take with respect to the McCain legislation. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

2. PRA171-1899-1903 [CD 6]

"This document is a June 23, 1998 email from Cynthia Dailard to Cynthia A. Rice forwarding a draft comparison chart, prepared using OMB figures, setting forth in detail the differences among the tobacco provisions of the McCain legislation, Hatch legislation, and the proposed states' settlement. This draft comparison includes comment on and analysis of some of the proposals' provisions." Rice Decl. at 17. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. PRA171-1899 only contains non-substantive transmittal information and a hex dump and is thus not entitled to protection. PRA171-1900-1903 consists of a chart comparing the McCain and Hatch legislation and the proposed states' settlement. The chart is not deliberative in nature, but instead is factual as it summarizes the provisions of each legislative proposal.

3. PRA171-1910-1926 [CD 9]

"This document consists of two May 26, 1998 emails forwarding and commenting briefly on an attached draft OMB document entitled `Policy/Technical Comments on the 5/18/98 Version of McCain Bill,' with suggestions on how the McCain tobacco legislation should be amended, including comments from the Department of Justice: (a) Frank J. Seidl III to Cynthia Dailard, with copies to a large group of OMB personnel, and (b) Cynthia Dailard to Cynthia A. Rice indicating that she will review the new language." Rice Decl. at 18. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the McCain legislation and deliberative in that the document reflects the suggestions and comments of various agencies: REDACTED REDACTED. PRA171-1910. Further, the Special Master does not believe that the document is sufficiently relevant to the remaining claims and defenses in this litigation. Most of the comments are technical in nature and do not implicate First Amendment defenses or youth consumption issues and do not indicate that certain provisions conflict with existing statutory and regulatory framework.

4. PRA171-1927-1930 [CD 10]

"This document is a June 3, 1998 email from Cynthia Dailard to Cynthia A. Rice transmitting further OMB draft comments on the McCain legislation, sent by OMB to the Domestic Policy Council as a follow-up to the attachment transmitted in Challenged Document #9, with Ms. Dailard's explanation to Ms. Rice as to their disposition." Rice Decl. at 18. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the McCain legislation and deliberative in that the document reflects the comments of OMB: REDACTED REDACTED. PRA171-1927. Further, the Special Master does not believe that the document is sufficiently relevant to the remaining claims and defenses in this litigation. Most of the comments are technical in nature and do not implicate First Amendment defenses or youth consumption issues and do not indicate that certain provisions conflict with existing statutory and regulatory framework.

5. PRA171-2014-2015 [CD 14]

"This document is a July 29, 1997 email from Mark E. Miller, Chief, Health Financing, Health/Personnel, OMB, to Joshua Gotbaum, Executive Associate Director, OMB, Christopher C. Jennings, Deputy Assistant to the President for Health Policy, DPC, and Jacob J. Lew, Deputy Director, OMB, with copies to Janet Himler, Program Examiner, Human Resources, OMB, Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, and Jill M. Blickstein, Program Examiner, Director's Office, OMB, discussing and providing his analysis concerning unresolved issues in Congressional negotiations leading to the Balanced Budget Act of 1997, including relating to a proposed increase in the tobacco excise tax." Locke Decl. at 11. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Balanced Budget Act and deliberative in that it reflects the analysis of Mr. Miller and his questions concerning a proposed increase in the tobacco excise tax. Mr. Miller asks: REDACTED REDACTED. PRA171-2015. Further, the Special Master does not believe that the document is sufficiently relevant to the remaining claims and defenses in this litigation. Most of the comments are technical in nature and do not implicate First Amendment defenses or youth consumption issues and do not indicate that certain provisions conflict with existing statutory and regulatory framework.

6. PRA171-2074-2078 [CD 18]

"This document consists of three emails: (a) March 30, 1998, Melany Nakagiri to Joshua Gotbaum, providing the OMB Health Division's detailed comments on the proposed McCain tobacco bill; (b) March 31, 1998, Mr. Gotbaum to Cynthia A. Rice, forwarding (a); and (c) March 31, 1998, Ms. Rice to Mr. Gotbaum, with copies to Jill M. Pizzuto and Richard J. Turman, requesting OMB suggestions for possible modifications of the McCain bill language concerning inflation adjustments." Rice Decl. at 18. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the McCain legislation and deliberative in that the document reflects OMB comments and proposed modifications to the McCain bill. The Special Master does not believe that Joint Defendants have shown need for this document as the topics discussed are not sufficiently relevant to those encompassed in Joint Defendants' need arguments, and because Joint Defendants have access to any final Administration position on the McCain bill.

7. PRA171-2112-2112 [CD 21]

"This document consists of two October 1, 1998 emails: (a) Ron Klain to David W. Beier, with a copy to Sarah A. Bianchi, providing his opinions and ideas as to how to proceed with respect to possible comprehensive tobacco legislation, legislation providing authority to file a lawsuit, and settlement discussions; and (b) Ms. Bianchi to Christopher C. Jennings, forwarding (a)." Gonzales Decl. Ex. A at 11; Brown Decl. § 15. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch decision on legislation providing authority to file a lawsuit and is deliberative in that it reflects the personal opinions and suggestions of Mr. Klain. Further, the Special Master does not believe that Joint Defendants have established need for this document as they have not shown that the communications are sufficiently relevant to their claims of need, and Mr. Klain's email is candid and personal in nature REDACTED REDACTED; therefore disclosure could threaten future similar candid EOP communications.

8. PRA171-2114-2119 [CD 22]

"This document contains three June 19, 1998 emails: (a) Cynthia Dailard to Cynthia A. Rice, providing certain information concerning the Hatch tobacco bill surcharges; (b) Ms. Dailard to Laura Emmett, requesting that she forward (a) to Bruce N. Reed; and (c) Ms. Dailard to Ms. Rice, forwarding a three-days-earlier (June 19, 1998) version of the draft table described in Challenged Document #6." Rice Decl. at 18-19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. PRA171-2115 only contains a hex dump and is thus not entitled to protection. PRA171-2114 reflects non-substantive transmittal information and factual information regarding surcharges in the Hatch legislation. PRA171-2116-2119 consists of a chart comparing the McCain and Hatch legislation and the proposed states' settlement. Like Challenged Document #6, the chart is not deliberative in nature as it only summarizes the provisions of the legislation and proposed settlement.

9. PRA171-2137-2150 [CD 27]

"This document is a June 16, 1998 email from Karl Scholz, Department of Treasury, to Cynthia Dailard and Cynthia A. Rice, with a copy to G. Gerardi, transmitting detailed descriptions/analysis of several proposed amendments to the McCain legislation (including, specifically, discussion of possible benefits or problems created by the proposals) and the agency's proposed position (on behalf of the Administration) as to whether to oppose or support each proposed amendment." Rice Decl. at 19. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privilege. Page PRA171-2137 contains nonsubstantive information and a hex dump. Pages PRA171-2138-2150 reflect the positions of the Department of Treasury on amendments to the McCain legislation. Treasury employees authored the email and there is no indication that the document was solicited and received for the purpose of formulating advice to the President. Further, the pages do not appear to be predecisional and deliberative; instead, the pages reflect Treasury Department decisions regarding whether to support or oppose certain amendments. Thus, the document should not be protected from discovery.

10. PRA171-2631-2646 [CD 53]

"This document contains two emails dated January 29, 1999 that discuss draft guidance for Congressional testimony prepared by OMB and transmitted to the DPC for its review and approval: (a) Victoria A. Wachino to Cynthia A. Rice, Joshua Gotbaum, Daniel N. Mendelson, Richard J. Turman, Richard P. Emery and William G. White, transmitting the draft press guidance on `Cigarette Price Increases,' `Uses of Additional Tax Revenues,' `Tobacco Taxes and Smuggling,' `Medicaid Tobacco Recoupment Policy,' `Department of Justice Litigation,' `Costs of Smoking to Medicare and Other Federal Health Care Programs,' `Protection for Tobacco Farmers,' `FDA Authority to Regulate Tobacco Products,' `Tobacco — Public Health Spending,' `Child Care and Tobacco Funding,' `USDA Tobacco User Fee,' and `What is Medicaid Recoupment Paying for?' and (b) Ms. Rice to Ms. Wachino, requesting an edit to one of the papers. Although Ms. Wachino refers to these papers as `revised final QAs,' in fact they would not become final until they are approved by the DPC." Rice Decl. at 19.⁹ Plaintiff asserts the deliberative process privilege.

9 Ms. Rice further states:

In fact, these papers were intended to be used only internally at OMB and HHS to prepare for upcoming testimony. See the cover emails to Challenged Documents ##63 and 66, which transmit other versions/slightly earlier drafts of these papers and state that the papers are to be placed in briefing books for OMB Director (Jack Lew), Deputy Director (Sylvia Mathews), and HHS Secretary Donna Shalala. The cover email in Challenged Document #66 specifically states that the documents are for internal" use.

Rice Decl. at 19.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the final QAs to be approved by the DPC and deliberative in that the document reflects the recommendations by OMB. Further, the Special Master does not believe that the document is sufficiently relevant to Joint Defendants' claims of need regarding the remaining claims and defenses in this litigation. In addition, this information, which was to be used for upcoming testimony, is likely available from other sources.

11. PRA171-2773-2791 [CD 63]

"This document is a January 29, 1999 email from Victoria A. Wachino to Cynthia A. Rice, with copies to Richard P. Emery, Daniel N. Mendelson, William G. White, Richard J. Turman, and Joshua Gotbaum, transmitting draft Congressional testimony briefing materials for the OMB Director (Jack Lew) and Deputy Director (Sylvia Mathews) — a document entitled `Tobacco Policies in the FY 2000 Budget,' which provides information on and an analysis of youth smoking statistics, the revenue components of the budget, public health initiatives, federal recoupment, and assistance to tobacco farmers and farming communities, and draft internal-use guidance on `Cigarette Price Increases,' `Uses of Additional Tax Revenues,' `Tobacco Taxes and Smuggling,' `Medicaid Tobacco Recoupment Policy,' `Department of Justice Litigation,' `Costs of Smoking to Medicare and Other Federal Health Care Programs,' `Protection for Tobacco Farmers,' `FDA Authority to Regulate Tobacco Products,' `Tobacco — Public Health Spending,' `Child Care and Tobacco Funding,' `USDA Tobacco User Fee,' and `What is Medicaid Recoupment Paying for?'" Rice Decl. at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. As a draft, the document is predecisional as it contains draft Congressional testimony briefing materials and deliberative in that reflects the recommendations of the authors as to the content of the materials. Further, the Special Master does not believe that Joint Defendants can show a sufficient need as the information is likely available from other sources because the materials were to be used for Congressional testimony.

12. PRA171-2829-2856 [CD 65]

"The withheld portion of this document (pages 2830-2856) consists of a nonresponsive page of press guidance (school vouchers) and of two January 29, 1999 emails from Cynthia A. Rice to Richard J. Turman and J. Eric Gould transmitting and discussing briefly earlier drafts (including edits) of the documents described in Challenged Document ##53 and 63." Rice Decl. at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Page PRA171-2830 is non-responsive. Pages PRA171-2831-2856 consist of earlier drafts of Challenged Documents 53 and 63 and are predecisional and deliberative for the same reasons given for those documents. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for the document as it was to be used for Congressional testimony, and, thus, is likely available from other sources.

13. PRA171-2857-2875 [CD 66]

"This document is a January 29, 1999 email from Cynthia A. Rice to Devorah R. Adler, Lisa M. Kountoupes, J. Eric Gould, Elena Kagan, Jeanne Lambrew, Caroline R. Fredrickson, Thomas L. Freedman, Laura Emmett, and Bruce N. Reed transmitting what appear to be the `final' versions of the documents described in Challenged Documents ##53, 63, and 65, and noting that these papers are internal documents which will be used for the purpose of preparing Jack Lew, Sylvia Mathews, and Donna Shalala for their upcoming testimony. Also included in this package is the proposed text of the FY 2000 Budget text on tobacco. (The Budget would not be released until the second week of February 1999.)" Rice Decl. at 20-21. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. According to Ms. Rice, the document is the final version of Challenged Documents 53, 63 and 65, and even though it was prepared for internal use in preparing testimony, the document is not predecisional and deliberative because it reflects adopted policy and not the personal opinions of the authors.

14. PRA171-2881-2882 [CD 67]

"This document is a June 30, 1999 email from Cynthia A. Rice to Bruce N. Reed, with a copy to J. Eric Gould, transmitting and briefly commenting on a document entitled `Tobacco Technical Assistance,' which sets forth for consideration possible different approaches that would reduce youth smoking and raise revenue for health care program. Ms. Rice also discusses her impression of Sen. Harkin's and Sen. Specter's positions concerning proposed tobacco legislation and forwards requests for assistance from Sen. Harkin to the DPC." Rice Decl. at 21. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch policy on proposed tobacco legislation and deliberative in that it offers the impressions and suggestions of Ms. Rice: REDACTED REDACTED. PRA171-2882. Further, the Special Master does not believe that communications concerning REDACTED REDACTED are relevant to Joint Defendants' claims of need, as they have argued that discussions pertaining to the impact of proposed settlements on the federal budget relate to their affirmative equitable defenses, which are no longer part of this case.

15. PRA171-2921-2946 [CD 68]

"This document is a January 29, 1999 email from Victoria A. Wachino to Cynthia A. Rice, with copies to Richard P. Emery, Daniel N. Mendelson, William G. White, Richard J. Turman, and Joshua Gotbaum, transmitting yet another draft version of the documents described in Challenged Documents ##53, 63, 65, and 66." Rice Decl. at 21. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege for this draft document for the same reasons given for Challenged Documents 52, 63 and 65. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

16. PRA171-3000-3001 [CD 69]

"This document is a May 10, 1999 email from Devorah R. Adler to Cynthia A. Rice, with copies to Jeffrey A. Farkas, J. Eric Gould, Charles E. Kieffer, Daniel N. Mendelson, Jeanne Lambrew, Katherine Kirchgraber, Richard J. Turman, and Joshua Gotbaum, offering and seeking feedback on suggested edits by the author and Ms. Lambrew to a section of the Obey tobacco amendment that concerns the Federal Employees Health Benefit Program as the benefits standard and cost sharing, and providing an explanation as to why these modifications should be made." Rice Decl. at 21. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to Executive Branch policy on the Obey tobacco amendment and deliberative in that the document reflects the comments and suggestions by Ms. Adler and Ms. Lambrew: REDACTED REDACTED. PRA171-3000. Further, in camera review does not indicate that the document is sufficiently relevant to Joint Defendants' claims of need, as they have not demonstrated the relevance of internal deliberations regarding health benefits to the claims and defenses in this case.

17. PRA171-3002-3003 [CD 70]

"This document is a June 7, 1999 email from Cynthia A. Rice to Courtney O. Gregoire, Elena Kagan, Laura Emmett, and Bruce N. Reed, with a copy to J. Eric Gould, transmitting, discussing briefly, and requesting review of and comment on her re-draft document of a draft Treasury paper entitled `FY 2000 Tobacco Proposals' that offers proposals for reducing youth smoking and raising revenue for health-related programs. Ms. Rice states that this draft document will be forwarded to OMB and Treasury for further discussion and consideration." Rice Decl. at 22. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The draft document is predecisional to the final Treasury paper and is deliberative in that it contains proposals and suggestions for policy and Ms. Rice's request for comments: REDACTED REDACTED. PRA171-3002. Further, the Special Master does not believe that proposed legislation concerning REDACTED REDACTED are sufficiently relevant to Joint Defendants' claims of need, as these discussions essentially address the revenue raised from penalties and the potential impact on the federal budget, which Joint Defendants have asserted are relevant to their now-dismissed affirmative equitable defenses, and not to any actual impact the penalties would have on the incidence of youth smoking.

18. PRA171-3007-3032 [CD 71]

"This document is included within Challenged Document #65." Rice Decl. at 22. The Special Master recommends that the Court sustain the claim of deliberative process privilege for the same reasons given for Challenged Document 65. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

19. PRA171-3033-3051 [CD 72]

"This document is a February 2, 1999 email from Cynthia A. Rice to Charles R. Marr transmitting Challenged Document #66." Rice Decl. at 22. The Special Master recommends that the Court overrule the claim of deliberative process privilege. Page PRA171-3033 contains only non-substantive transmittal information and a hex dump and pages PRA171-3034-3051 are not entitled to protection for the same reasons given for Challenged Document 66.

20. PRA171-3621-3621 [CD 85]

"This document is a March 30, 1998 email from Monica N. Dixon to Ron Klain relating a telephone conversation she had with Rep. Downey concerning a telephone call between the Vice President and Rep. Downey on the McCain legislation and outlining topics for discussion with Mr. Klain." Gonzales Decl. Ex. A at 13; Brown Decl. § 15. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. The email was authored and received by advisors to the Vice President and describes a phone call between the Vice President and Rep. Downey. As previously stated, in Report and Recommendation #164, the Special Master recommended limiting the applicability of the privilege to documents that ultimately called for Presidential decisionmaking, not decisionmaking of the Vice President or other high-ranking officials.

The Special Master recommends that the Court overrule the claim of deliberative process privilege. The document does not reflect the give-and-take of the consultative process among agency employees with regard to agency policy; instead, the email relays comments by Rep. Downey on the McCain legislation.

21. PRA171-3843-3843 [CD 92]

"This document is a March 13, 1998 email from Jerold R. Mande to Toby Donenfeld alerting Ms. Donenfeld to Mr. Mande's interpretation of Sen. Kerry's position on limits on tobacco industry liability and advertising restrictions, and providing the White House's contrary view." Rice Decl. at 22. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. According to Ms. Rice, the document reflects the "interpretation" of Sen. Kerry's position and presents the "contrary view" by the White House: REDACTED REDACTED. PRA171-3843. There is no indication that the document is predecisional or deliberative — there is no "weighing the pros and cons of agency adoption of one viewpoint or another,"Coastal States Gas, 617 F.2d at 866; instead, the document appears to reflect the position of the White House and to provide the position of an official in the legislative branch.

22. PRA171-4039-4039 [CD 97]

"This document is a March 3, 1998 email from Michael Cohen to Elena Kagan and Bruce N. Reed (a) informing Mr. Reed and Ms. Kagan of an upcoming meeting between Administration representatives and Sen. Harkin and seeking their guidance as to the positions that the Administration should take in those meetings, and (b) offering his opinion of the motivation for certain proposals being made by Sen. Harkin or his staff." Rice Decl. at 23. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege as there is no indication that the communication was solicited or received for the purpose of advising the President. The Special Master recommends, however, that the Court sustain the deliberative process privilege as the email is predecisional and deliberative in that the email reflects the give-and-take of the consultative process prior to formulating a final position: REDACTED REDACTED. PRA171-4039. Further, the document is not sufficiently relevant to Joint Defendant's claims of need to justify disclosure.

23. PRA171-4080-4081 [CD 102]

"This document is a January 30, 1998 email from Jerold R. Mande to Thomas L. Freedman transmitting for review and comment draft press guidance on the Administration's position on tobacco legislation with regard to the increase discretionary spending using tobacco revenue, limiting industry liability, and tobacco control." Rice Decl. at 23. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA171-4080 contains non-substantive transmittal information and a hex dump. Page PRA171-4081, however, is press guidance that, as a draft, is predecisional and deliberative because it reflects the recommendations of the author. Further, the Special Master does not believe that Joint Defendants can show substantial need for the protected pages as similar information, namely the press guidance in final form, is likely available from other sources, and as the questions pertain to the budgetary impact of tobacco payments, which Joint Defendants have asserted is relevant to their now-dismissed affirmative equitable defenses.

24. PRA171-4086-4088 [CD 104]

"This document is a May 18, 1998 email from Mary L. Smith to Lynn G. Cutler forwarding draft press guidance entitled `The Gorton Amendment' (dealing with American Indian tobacco sales)." Rice Decl. at 23. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page 4086 only contains a hex dump and non-deliberative information that should not be protected. Pages PRA171-4087-4088, however, contain press guidance that, as a draft, is both predecisional and deliberative. The email at page PRA171-4086 indicates that the draft was REDACTED REDACTED. Further, the Special Master does not believe that legislation dealing with American Indian tobacco sales is relevant to Joint Defendants' claims of need and, as press guidance, this information is likely available from other sources.

25. PRA171-4136-4138 [CD 109]

"This document consists of two March 20, 1998 emails: (a) Toby Donenfeld to Cynthia A. Rice, forwarding draft press guidance entitled `Questions and Answers on State Youth Smoking Reduction' with her suggested edits; and (b) Ms. Rice to Ms. Donenfeld, commenting on and offering her opinion as to a problem with Ms. Donenfeld's proposed version in (a)." Rice Decl. at 23-24. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Documents 102 and 104, the document contains draft press guidance that is both predecisional and deliberative. The document also contains an email that reveals the personal views of Ms. Rice on the draft ( REDACTED REDACTED). Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources.

26. PRA171-4163-4164 [CD 111]

"This document is a December 11, 1998 email from Cynthia A. Rice to Cathy R. Mays, Elena Kagan, Laura Emmett, and Bruce N. Reed, forwarding her revised draft chart entitled `Tobacco Tax Options,' listing different tax options and the effects over a six year period, and seeking guidance as to whether this is what Mr. Reed wanted." Rice Decl. at 24. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the presidential communications privilege. Page PRA171-4163 contains non-substantive transmittal information and a hex dump. Page PRA171-4164, however, was solicited and received (the subject line reads REDACTED REDACTED) by high-level presidential advisors within the DPC who have responsibility for formulating advice to the President on options for a tobacco tax. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

27. PRA171-4186-4186 [CD 114]

"This document is a May 11, 1998 email from Cynthia Dailard to Joshua Gotbaum transmitting and seeking Mr. Gotbaum's review of and comment on draft press guidance concerning Senator Nickles' cost analysis of the McCain bill." Rice Decl. at 24. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Similar to the other Challenged Documents containing draft press guidance, this document is also predecisional and deliberative. The document reflects the suggestions of Ms. Dailard and requests guidance from Mr. Gotbaum: REDACTED REDACTED. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and as Joint Defendants have not established that discussions addressing a member of Congress's projected costs of the McCain bill to the industry are relevant to this matter.

28. PRA171-4187-4190 [CD 115]

"This document is a January 30, 1998 email from Thomas L. Freedman to Bruce N. Reed and Elena Kagan, with copies to Jerold R. Mande, Mary L. Smith, and Laura Emmett, transmitting, seeking Mr. Reed's review of, and commenting on the possible need to revise one answer of revised press guidance concerning the upcoming Budget and possible federal tobacco legislation." Rice Decl. at 24. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Similar to the other Challenged Documents containing draft press guidance, this document is also predecisional and deliberative. In addition, the email forwarding the draft reflects the give-and-take of the consultative process: REDACTED REDACTED. PRA171-4187. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and because they have argued that discussions pertaining to the impact of tobacco revenue on the federal budget are relevant to their now-dismissed affirmative equitable defenses.

29. PRA171-4197-4231 [CD 117]

"This document is a May 1, 1998 email from Cynthia A. Rice to Peter G. Jacoby, Toby Donenfeld, Mary L. Smith, Richard J. Turman, Jerold R. Mande, and Thomas L. Freedman, transmitting her note to the [tobacco] working group that attaches an earlier draft version of [the] working group's `technical comments' on the McCain bill and requests that revisions be made to this chart as are needed. The chart shows proposed revisions and the sponsoring Executive Branch agency." Rice Decl. at 25. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch position on the McCain legislation and is deliberative in that the draft reflects the recommendations and suggestions of the agencies and the email (PRA171-4197) and cover note (PRA171-4198) request additional review. Ms. Rice states: REDACTED REDACTED. PRA171-4198. Further, the Special Master does not believe that technical comments on the McCain bill are sufficiently relevant to Joint defendants' claims of need.

30. PRA171-4232-4270 [CD 118]

"This document is a June 22, 1998 email from Lesley A. Pate to Cynthia A. Rice, transmitting detailed Executive Branch agencies' characterizations/analyses of proposed McCain bill amendments and their recommended positions as to what the Administration position should be on those proposed amendments." Rice Decl. at 25. Plaintiff asserts the attorney-client and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of attorneyclient privilege. There is no indication that this document reveals confidential client communications made for the purpose of receiving legal advice. Neither Ms. Pate nor Ms. Rice is identified as an attorney.

The Special Master recommends that the Court sustain in part the claim of deliberative process privilege. Page PRA171-4232 only contains transmittal information and a hex dump. Pages PRA171-4233-4270, however, are predecisional to the Administration's official position on the various McCain amendments and are deliberative in that they reflect the recommendations of various agencies as to their positions on the amendments. Further, Joint Defendants' have not demonstrated sufficient need for this document as they would have access to the Administration's final position on the McCain bill and have not established any particular relevancy for internal comments on the bill.

31. PRA171-4271-4291 [CD 119]

"The withheld portion of this document is a draft summary chart entitled `McCain Tobacco Bill (S. 1415)-Major Provisions' that sets forth the author's characterization of the provisions in the bill." Rice Decl. at 25. Plaintiff asserts the deliberative process privilege for the withheld pages.¹⁰

10 Plaintiff released pages 4271-4284.

The Special Master recommends that the Court overrule the claim of privilege. The pages are a "draft summary" of the McCain tobacco bill as introduced in the Commerce Committee on March 31, 1998. The pages are factual and do not reflect the recommendations, suggestions, or personal opinions of the author and are thus not deliberative in nature.

32. PRA171-4296-4296 [CD 120]

"This document consists of two March 26, 1998 emails: (a) Barry J. Toiv to Cynthia A. Rice, requesting a report on an Executive Branch tobacco meeting; and (b) Ms. Rice to Mr. Toiv, providing a brief report on the meeting, including reiterating the DPC's assessment of the current FDA-related provisions and its views as to whether possible provisions relating to tobacco farmers satisfy the Administration's requirements." Rice Decl. at 25. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the adoption of policy by the Administration regarding the McCain legislation and deliberative in that it reflects the give-and-take of the consultative process during the meeting: REDACTED REDACTED. Further, in camera review does not support that the email is relevant to Joint Defendants' assertions of need concerning the remaining claims and defenses in this litigation.

33. PRA171-4398-4399 [CD 129]

"This document consists of three February 3, 1998 emails: (a) Jeanne Lambrew, Senior Health Policy Analyst, National Economic Council (NEC), Office of Policy Development (OPD), EOP, to Joshua Gotbaum, Executive Associate Director, OMB, seeking guidance concerning the out-year revenue assumptions behind the Administration's proposal for comprehensive tobacco legislation in the 1999 Budget; (b) Mr. Gotbaum to Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, forwarding this inquiry; and (c) Mr. Turman to Ms. Lambrew, with copies to Mark E. Miller, Chief, Health Financing, Health/Personnel, OMB, William G. White, Program Examiner, Health/Personnel, OMB, Mr. Gotbaum, Joseph J. Minarik, Associate Director, Economic Policy, OMB, Jim R. Esquea, Program Examiner, Health/Personnel, OMB, Marc Garufi, Program Examiner, Health, OMB, and Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, offering Mr. Gotbaum's and his proposed answer to Ms. Lambrew's question." Locke Decl. at 11. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional in that it discusses an aspect of the Administration's proposal for comprehensive tobacco legislation in the 1999 Budget and deliberative in that it reveals the give-and-take between the EOP and OMB on out-year revenue assumptions. Further, there is no indication that out-year revenue assumptions are relevant to Joint Defendants' claims of need, as the discussions essentially pertain to federal tobacco receipts, which Joint Defendants have asserted are relevant to their nowdismissed affirmative equitable defenses.

34. PRA171-4458-4461 [CD 134]

"This document is a May 14, 1997 email from Sarah A. Bianchi to Charles R. Marr forwarding draft press guidance concerning the Administration's health care/children's health initiative. Ms. Bianchi also relays information concerning Christopher Jennings' views as to what should be done concerning a proposed answer concerning a tobacco tax." Rice Decl. at 26. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document, as a draft of press guidance, is both predecisional and deliberative and the forwarding email indicates that further revisions may be done on the tobacco tax answer. Ms. Bianchi states: REDACTED REDACTED. PRA171-4458. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and because the discussions primarily relate to health care coverage for children, and the tobacco tax issue (which pertains to federal budgetary issues) is discussed in connection with health care coverage.

35. PRA171-4485-4494 [CD 137]

"This document consists of two emails: (a) June 14, 1998, Joshua Gotbaum to Cynthia A. Rice, with copies to Bruce N. Reed, Elena Kagan, and Richard J. Turman, transmitting OMB's characterizations/analyses of proposed McCain bill amendments and their recommended positions as to what the Administration position should be on those proposed amendments; and (b) June 15, 1998, Cynthia A. Rice to Cynthia Dailard, asking whether the DPC had received expected additional analysis from Karl Scholtz." Rice Decl. at 26. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document contains two emails that were solicited and/or received by high-level presidential advisors in the DPC who have responsibility for formulating advice to the President on the proposed McCain bill amendments. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

36. PRA172-0007-0007 [CD 141]

"This document is an October 19, 1999 email from Cynthia A. Rice to Eric P. Liu and Bruce N. Reed, with copies to Eugenia Chough and J. Eric Gould, offering her suggestions as to how to respond to a request from Gene Sperling for information on whether research shows a correlation between higher tobacco tax and greater health benefits for lower income Americans." Rice Decl. at 26.¹¹ Plaintiff asserts the deliberative process privilege.

11 Ms. Rice further declares: "This email is not complete. However, the rest of it could not be located; the next page in the container is the beginning of a different document." Rice Decl. at 26.

The Special Master recommends that the Court overrule the claim of privilege. The email is in response to the request stated above from Mr. Sperling. Ms. Rice responds in part: REDACTED REDACTED. Thus, it does not appear that the email is predecisional or deliberative; instead, the email reflects the previous REDACTED of the Administration.

37. PRA172-0067-0068 [CD 143]

"This document, which appears to be a follow-up to Challenged Document #141, is a October 24, 1999 email from Ripley Forbes to Cynthia A. Rice and Eugenia Chough transmitting draft talking points entitled `Questions and Answers: Smoking and Economic Status' that focus on the Administration's analysis of recent surveys on the correlation between smoking participation and an individual's income bracket, and seeking further review and discussion of these points." Rice Decl. at 26-27. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The talking points analysis, as a draft, is predecisional and deliberative and the forwarding email reflects that the draft was preliminary and that further discussion was contemplated: REDACTED REDACTED. PRA172-0067. Further, the Special Master does not believe that Joint Defendants can show sufficient need for the document because, as talking points, the same or similar information is likely available from other sources. Moreover, there is no indication that information regarding smoking and economic status is relevant to Joint Defendants' claims of need.

38. PRA172-0069-0093 [CD 144]

"This document is a January 28, 1999 email from J. Eric Gould to Laura Emmett, with a copy to Cynthia A. Rice, that essentially duplicates one or more of, and belongs with, Challenged Documents ##53, 63, 65, 66, 68, and 71." Rice Decl. at 27. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Documents #53, 63, 65, 68, and 71, this draft document is predecisional to the adoption of Administration policy in the FY 2000 Budget and deliberative in that the document reflects the recommendations and edits of the DPC. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

39. PRA172-0115-0140 [CD 146]

"This document essentially duplicates one or more of, and belongs with, Challenged Documents ##53, 63, 65, 66, 68, 71, and 144." Rice Decl. at 27. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Documents #53, 63, 65, 68, 71 and 144, this draft document is predecisional to the adoption of Administration policy in the FY 2000 Budget and deliberative in that the document reflects the recommendations and edits of the DPC: REDACTED REDACTED. PRA172-0115. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

40. PRA172-0147-0148 [CD 150]

"This document consists of two June 7, 1999 emails in which Cynthia A. Rice transmits to Joshua Gotbaum, Daniel N. Mendelson, Victoria A. Wachino, and Richard J. Turman the document described in Challenged Document #70." Rice Decl. at 27. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Document 70, the draft document is predecisional to the final Treasury paper and is deliberative in that it contains the suggestions of Ms. Rice: REDACTED REDACTED. PRA172-0147. Further, the Special Master does not believe that proposed legislation concerning REDACTED REDACTED are sufficiently relevant to Joint Defendants' claims of need, as Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses, which have since been dismissed from this lawsuit.

41. PRA172-0151-0157 [CD 151]

"This document is a January 28, 1999 email from J. Eric Gould to Cynthia A. Rice transmitting revised versions of some of the internal guidance described in the Challenged Documents ##53, 63, 65, 66, 68, 71, 144, and 146 series." Rice Decl. at 27. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Documents #53, 63, 65, 68, 71, 144, and 146, this document is predecisional to the adoption of Administration policy in the FY 2000 Budget and deliberative in that the document in draft form reflects recommendations and edits as shown by the strike-throughs. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

42. PRA172-0198-0199 [CD 152]

"This document is an email dated January 13, 1999 from Cynthia A. Rice to Elena Kagan, J. Eric Gould, Laura Emmett, and Bruce N. Reed forwarding a proposed contact list of individuals to call regarding the tobacco budget proposal component of the State of the Union address, and seeking guidance as to whether additional information is needed." Rice Decl. at 28. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privilege. The email reads: REDACTED REDACTED. PRA172-0198. There is no indication that the document was authored and received for the purpose of advising the President; instead, it was created to REDACTED REDACTED. Further, the document is not predecisional to the creation of policy or deliberative in nature.

43. PRA172-0200-0204 [CD 153]

"This document consists of two emails: (a) January 28, 1999, Christopher Ferris to Cynthia A. Rice, transmitting a draft document entitled `Tobacco Policies' (setting forth the Administration's post-MSA tobacco proposals) and informing Ms. Rice that the document is currently under review by OMB officials; and (b) January 29, 1999, Ms. Rice to Richard J. Turman, Charles R. Marr, and Victoria A. Wachino, with copies to Laura Emmett and J. Eric Gould, transmitting a version of the draft with DPC's edits." Rice Decl. at 28. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document was authored or received for the purpose of advising the President or that the communication involves presidential decisionmaking. The deliberative process privilege should apply as the document is a draft of what will become a final document, and the emails reflect that DPC had made edits and that OMB was currently reviewing the tobacco policies. The Special Master does believe, however, that Joint Defendants have shown a sufficient need because the document relates to youth smoking prevention efforts and estimates of youth smokers and possible reduction in youth smokers, and because it is unlikely to have a chilling effect because text appears to be lifted from the Budget (per Mr. Ferris's email). Thus, Plaintiff should produce this document.

44. PRA172-0288-0291 [CD 159]

"This document consists of four emails: (a) June 4, 1999, Cynthia A. Rice to Mark McClellan, responding to a voice mail message from Mr. McClellan; (b) June 4, 1999 (two emails, only one with text), from Mr. McClellan to Ms. Rice, with a copy to Phil Ellis, transmitting for further review and comment a revised version of the `FY 2000 Tobacco Proposals' that is described in Challenged Documents ##70 and 150, and indicating that estimates located therein are preliminary; and (c) June 7, 1999, Ms. Rice to Messrs. Ellis and McClellan, with a copy to J. Eric Gould, transmitting, discussing briefly, and requesting Treasury's review of her edited version of the draft proposal." Rice Decl. at 28. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the adoption of Administration policy on the tobacco proposals for FY 2000 and deliberative in that the draft document contains the suggestions of the authors: REDACTED REDACTED. PRA172-0289. The forwarding emails also reflect the predecisional and deliberative nature of the document: REDACTED REDACTED. PRA172-0288. Further, the Special Master does not believe that proposed legislation concerning REDACTED REDACTED are sufficiently relevant to Joint Defendants' claims of need, as such discussions pertain to federal tobacco revenues, which Joint Defendants have argued are relevant to their now-dismissed affirmative equitable defenses.

45. PRA172-0337-0361 [CD 166]

"This document is two January 28, 1999 emails transmitting versions of the internal guidance described in the Challenged Documents ##53, 63, 65, 66, 68, 71, 144, 146, and 151 series: (a) J. Eric Gould to Laura Emmett, with a copy to Cynthia A. Rice, transmitting the documents; and (b) Ms. Rice to Mr. Gould, further transmitting the documents and instructing him to send them to Richard J. Turman." Rice Decl. at 29. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like the Challenged Documents listed above, this document is predecisional to the adoption of Administration policy in the FY 2000 Budget and deliberative in that the document is in draft form and reflects recommendations and edits: REDACTED REDACTED. PRA172-0337. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

46. PRA172-0362-0381 [CD 167]

"This document, which is included within Challenged Document #166, also is part of the Challenged Documents # #53, 63, 65, 66, 68, 71, 144, 146, 151, and 166 series." Rice Decl. at 29. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like the Challenged Documents listed above, this document is predecisional to the adoption of Administration policy in the FY 2000 Budget and deliberative in that the document is in draft form and reflects recommendations and edits: REDACTED REDACTED. PRA172-0362. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced (CD 66).

47. PRA172-0390-0405 [CD 170]

"This document, which is part of the Challenged Documents ##53, 63, 65, 66, 68, 71, 144, 146, 151, 166, and 167 series, is a January 29, 1999 email from Victoria A. Wachino to William H. White, Richard J. Turman, Joshua Gotbaum, Richard P. Emery, Cynthia A. Rice, and Daniel N. Mendelson transmitting certain of the draft Congressional testimony guidance papers." Rice Decl. at 29. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Like Challenged Document #66, this document appears to be the final version of the QAs. The forwarding email reads: REDACTED REDACTED. PRA172-0390. Thus, the document is not entitled to protection.

48. PRA172-0416-0417 [CD 173] PRA172-0421-0422 [CD 175]

Challenged Document 173 "is a January 14, 1999 email from J. Eric Gould to Cynthia A. Rice transmitting for review and comment draft press guidance concerning the Administration's position concerning a possible increase in cigarette taxes, alternative plans to reduce smoking, and recoupment." Rice Decl. at 29.

Challenged Document 175 "is a January 22, 1999 email from Cynthia A. Rice to Laura Emmett, with copies to Thomas L. Freedman and J. Eric Gould, transmitting draft press guidance concerning establishing a trust fund to aid tobacco farmers, whether there is at conflict between attempts to reduce smoking and protecting the tobacco farmers' interests, and recoupment." Rice Decl. at 30.

Plaintiff asserts the deliberative process privilege for both documents.

The Special Master recommends that the Court sustain in part the claims of privilege. Pages PRA172-0416 (CD 173) and PRA172-0421 (CD 175) only contain nonsubstantive transmittal information and a hex dump. Pages PRA172-0417 (CD 173) and PRA172-0422 (CD 175), however, reflect press guidance that, as drafts, are predecisional and deliberative. Further, the Special Master does not believe that Joint Defendants can show sufficient need for the documents because, as press guidance, the same or similar information is likely available from other sources and, having reviewed Joint Defendants' need arguments and the documents at issue, the Special Master does not believe that they are sufficiently relevant to Joint Defendants' asserted need to justify overcoming Plaintiff's privilege interest.

49. PRA172-0504-0505 [CD 192]

"This document is a October 20, 1999 email from Eric P. Liu to Cynthia A. Rice, with copies to J. Eric Gould and Anna Richter, transmitting revised draft tobacco talking points in support of raising federal tobacco taxes." Rice Decl. at 30. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The draft talking points are predecisional and deliberative in that they reflect the revisions of the author and have not yet been adopted as policy. The forwarding email indicates its deliberative nature: REDACTED REDACTED. PRA172-0504. The Special Master does believe, however, that Joint Defendants have shown sufficient need for the document because the document addresses the actual effect on teen smoking projected from a price increase, which is relevant to their need arguments, and the document is not particularly candid or personal in nature.

50. PRA172-0515-0521 [CD 194]

"This document consists of three October 21, 1999 emails and attachments: (a) Phil Ellis to Cynthia A. Rice, with a copy to David Wilcox, transmitting a package of tobacco-related materials from Treasury (to be used within the Executive Branch to calculate possible effects of various proposed cigarette tax increases and for meetings with Congress) — paper entitled `Low Income Groups See Smallest Rise in Spending and Greatest Benefits from McCain Bill' and October 21, 1999 memorandum attaching and discussing a draft press guidance explaining the change in the Administration's estimates of the number of underage smokers, a note (`Disaggregation of Effects/50% Goal') explaining a table (not included) projecting the effects of the MSA and excise tax increases on cigarette prices, and a paper (`Points on Regressivity') explaining and listing changes that must be made to an earlier-prepared Jonathan Gruber spreadsheet (not included) concerning the effects of cigarette price increases on different income groups; (b) Ms. Rice to Daniel N. Mendelson and Joshua Gotbaum, with copies to Eugenia Chough and J. Eric Gould, forwarding the documents from Treasury and discussing further information she is gathering and her plans to put the material together into one document; and (c) Ms. Rice to Ms. Chough, with a copy to Mr. Gould, forwarding (a) and (b) preparatory to a discussion of these issues." Rice Decl. at 30-31. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The emails and documents are all predecisional to Administration policy on tobacco tax increases and deliberative in that each reflects the give-and-take of the consultative process. In the second email from Ms. Rice, she states: REDACTED REDACTED. PRA172-0515.

The Special Master believes that Joint Defendants have shown sufficient need for a portion of the document. Page PRA172-0519 concerns underage smoking, which is relevant to the claims and defenses in this litigation, and is not candid or personal in nature. The rest of the pages concern the effect of cigarette prices on low-income adults and the impact on the federal budget, which are not relevant to Joint Defendants' claims of need.

51. PRA172-0527-0531 [CD 195]

"This document is a January 4, 1999 email from J. Eric Gould to Cynthia A. Rice transmitting for review and comment a draft comprehensive tobacco proposal — increased tobacco taxes, federal Medicare lawsuit, Medicaid recoupment, FDA jurisdiction, lookback surcharges, and protection for tobacco farmers and their communities." Rice Decl. at 31. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The tobacco proposal, as a draft, is both predecisional and deliberative and the forwarding memorandum further supports the predecisional and deliberative nature of the document: REDACTED REDACTED. PRA172-0527.

The Special Master believes that a portion of this document is relevant to Joint Defendants' claim of need; namely the section on pages PRA172-0529-0530 concerning reduction in youth smoking. In addition, there is no indication that this information is available from other sources or that the material "is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866.

52. PRA172-0555-0570 [CD 197]

"This document is a January 29, 1999 email from Victoria A. Wachino to Cynthia A. Rice, Joshua Gotbaum, Daniel N. Mendelson, Richard J. Turman, Richard P. Emery, and William G. White transmitting some of the Congressional testimony guidance that are part of the Challenged Documents ##53, 63, 65, 66, 68, 71, 144, 146, 151, 166, 167, and 170 series." Rice Decl. at 31. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Like Challenged Documents #66 and #170, this document appears to be the final version of the QAs. The subject line of the forwarding email reads: REDACTED REDACTED. PRA172-0555. Thus, the document is not entitled to protection.

53. PRA172-0573-0575 [CD 198]

"This document is a January 28, 1999 email from J. Eric Gould to Cynthia A. Rice transmitting two of the internal press guidance documents that are part of the Challenged Documents ##53, 63, 65, 66, 68, 71, 144, 146, 151, 166, 167, 170, and 197 series." Rice Decl. at 31. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Plaintiff released pages 0573 and 0575. Page PRA172-0574 is dated one day earlier than the transmittal of the final version and comparison with CD 197 indicates that the QA on the subject discussed on page 0574 is different from the final version. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced.

54. PRA172-0579-0596 [CD 200]

"This document is a January 27, 1999 email from Daniel N. Mendelson to Cynthia A. Rice, with copies to Richard J. Turman and Joshua Gotbaum, transmitting to Ms. Rice for DPC's review an early draft of the papers in the Challenged Documents ##53, 63, 65, 66, 68, 71, 144, 146, 151, 166, 167, 170, 197, and 198 series." Rice Decl. at 32. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. As with some of the other challenged document in this series, this document is predecisional to adoption of FY2000 tobacco policy and deliberative in that it requests the comments and suggestions of the DPC: REDACTED REDACTED. PRA172-0579. In addition, the Special Master does not believe that Joint Defendants can show a sufficient need for this draft document as the Special Master has recommended that the final version be produced.

55. PRA172-0629-0629 [CD 208] PRA172-0630-0634 [CD 209]

Challenged Document 209 "consists of three August 31, 1999 emails: (a) Cynthia A. Rice to Eric P. Liu, with a copy to J. Eric Gould, transmitting and discussing changes she made to a draft document entitled `Tobacco Options' that outlines three options — tobacco tax increase, additional per child assessment, and reviving McCain bill provisions — aimed at combating underage smoking; (b) Mr. Liu to Ms. Rice, with copies to Mr. Gould and Anna Richter, requesting further changes in the draft and asking if Ms. Rice has spoken to Treasury personnel about this proposal; and (c) Ms. Rice to Mr. Liu, with copies to Ms. Richter and Mr. Gould, responding to (b), including concerning efforts she is making to determine the provenance of one of the proposals in the draft." Rice Decl. at 32. Challenged Document 208 "is a duplicate of the second page of Challenged Document #209." Id. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claims of privilege. The draft document is predecisional to the adoption of FY2000 tobacco policy and deliberative in that it lists three options for review. The forwarding emails outline a new option and request further revisions. Further, the Special Master does not believe that Joint Defendants have shown need for this document, as the discussions primarily relate to the federal tobacco revenues, which Joint Defendants have argued are relevant to the affirmative equitable defenses since dismissed from this action.

56. PRA172-0660-0661 [CD 212]

"This document is a January 12, 1999 email from Cynthia A. Rice to Laura Emmett, with a copy to J. Eric Gould, transmitting draft press guidance concerning the President's proposal to increase cigarette taxes in the upcoming Budget, Budget tobacco policy, and states' spending of MSA funds, and instructing that the draft be provided to Elena Kagan for her review." Rice Decl. at 32. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The draft QA are predecisional and deliberative and the forwarding email indicates that further review was requested: REDACTED REDACTED. PRA172-0660. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and because the document pertains to spending of tobacco proceeds, which Joint Defendants have argued is relevant to their now-dismissed affirmative equitable defenses.

57. PRA172-0662-0666 [CD 213]

"This document is partly duplicative of Challenged Document #194. It consists of three emails that preceded those in #194: (a) October 19, 1999, Cynthia A. Rice to Phil Ellis, posing two questions about which figures can be used (concerning `lives saved') and what can be said in the Budget about youth smoking reductions; and (b) October 21, 1999, Ms. Ellis to Ms. Rice, with a copy to David Wilcox, transmitting, and retransmitting, certain of the documents described in #194." Rice Decl. at 33. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Pages172-0663-0666 are duplicates of pages in Challenged Document 194 and should be sustained for the same reasons. Page PRA172-0662, the forwarding email, is predecisional and deliberative in that Mr. Ellis asks questions of Ms. Rice related to the attached materials.

The Special Master does believe that Joint Defendants' have shown a sufficient need for page PRA172-0664, which regards underage smoking and is related to the claims and defenses in this action and is not candid or personal in nature. The remainder of the document is not sufficiently relevant to Joint Defendants' claims of need to justify disclosure.

58. PRA172-0667-0669 [CD 214]

"This document contains two January 19, 1999 emails: (a) Sarah A. Bianchi to Ruby Shamir, with copies to Devorah R. Adler, Laura Emmett, and Paul J. Weinstein, Jr., transmitting for review and comment an edited draft document entitled `President Clinton's Proposal-Health Care for the 21st Century' that discusses Medicare reform, underage smoking, and tobacco policy; and (b) Ms. Bianchi to Mr. Weinstein and Laura Emmett, forwarding (a) and discussing the relationship of this document and its contents to others being prepared within the White House." Rice Decl. at 33. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level presidential advisors who have responsibility for formulating advice to the President on the development of a health care proposal. Indeed, the document contains a draft of an Administration policy statement. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, especially given that the document appears to be one that REDACTED REDACTED.

59. PRA172-0670-0670 [CD 215]

"This document consists of two June 22, 1999 emails discussing assistance to be provided to Sen. Harkin on tobacco legislation: (a) Joshua Gotbaum to Cynthia A. Rice, with a copy to Daniel N. Mendelson, expressing concern/caution about how to respond to Sen. Harkin's request for assistance; and (b) Ms. Rice to Mr. Gotbaum, responding to (a)." Rice Decl. at 33. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document was generated prior to the adoption of the Administration's position on tobacco policy and deliberative in that Mr. Gotbaum requests assistance from Ms. Rice and how to respond to Sen. Harkin: REDACTED REDACTED. PRA172-0670. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

60. PRA172-0733-0733 [CD 228]

"This document is a February 4, 1998 email from Keith O. Fuglie to Joe Glauber offering his opinion as to what analysis should be used to determine the effects of the President's tobacco tax proposals in the just-released Budget." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to determining the effects of the tobacco tax proposals and deliberative in that it reflects the suggestion of Mr. Fuglie: REDACTED REDACTED. PRA172-0733. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

61. PRA172-0741-0742 [CD 231]

"This document consists of two emails: (a) April 1, 1998, Jonathan Gruber to a group of CEA personnel following up on an earlier discussion concerning determining the costs of tobacco-related illnesses, including analyzing two alternatives for trying to determine those costs; and (b) April 2, 1998, Mr. Gruber to Jeffrey A. Frankel, Peter R. Orszag, and Rebecca M. Blank, forwarding (a)." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Administration's policy on determining the costs of tobacco and deliberative in that Gruber candidly relays his personal views and suggests two approaches for measuring those costs. However, this document should be produced as discussions related to an economic model to measure the cost of smoking are sufficiently relevant to Joint Defendants' claims of need, there is no indication that the information is available from other sources, and the document is not "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866.

62. PRA172-0743-0743 [CD 232]

"This document is an April 2, 1998 email from Rebecca M. Blank to Jonathan Gruber responding to Mr. Gruber's email in Challenged Document #231. Ms. Blank questions certain of the assumptions and methodology used by Mr. Gruber in his analysis and offers her opinions as to possible alternative approaches." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Document 231, this document is predecisional to the Administration's policy on determining the costs of tobacco and deliberative in that Ms. Blank responds to Mr. Gruber's email and asks additional questions. Further, like Challenged Document 231, the document should be produced to Joint Defendants.

63. PRA172-0744-0744 [CD 233]

"This document is a February 10, 1998 email from Charles F. Stone to Jonathan Gruber requesting information about an upcoming announcement by the President concerning the effect of cigarette prices on youth smoking and offering opinions/concerns about a proposed lookback surcharge, including a possible adverse effect of such a surcharge." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative in that the email contains a discussion regarding a proposal to reduce youth smoking and the effects of that proposal.

The Special Master believes, however, that Joint Defendants' need for the document overcomes the qualified privilege. The document is relevant to the claims and defenses in this litigation regarding youth smoking, including Joint Defendants' assertion that "communications assessing the impact cigarette price adjustments would have on youth consumption . . . could very well contradict claims or assumptions made by the Government's experts in this litigation." Mot. App. B at 61-62. In addition, there is no indication that this information is available from other sources or that the "document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866.

64. PRA172-0751-0751 [CD 236]

"This document consists of two emails from John Kitchen to a group of Executive Branch personnel: (a) November 30, 1998, concerning procedures for forecasting indirect business taxes (IBT), the effect of cigarette taxes on that forecast, and changes in that forecast between the Midsession review (MSR) and the next January forecast; and (b) December 1, 1998, re-transmitting (a)." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Plaintiff has not satisfied its burden in showing that the document is predecisional to the adoption of agency policy, the deliberative process involved, or the role the document played in the course of that process.Coastal States Gas, 617 F.2d 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."). Thus, the document should not be protected from disclosure.

65. PRA172-0774-0774 [CD 240]

"This document is a February 2, 1998 email from Keith O. Fuglie to Charles F. Stone inquiring whether an analysis concerning the impact of the proposed tobacco taxes on cigarette taxes has been performed, including stating the reason for the inquiry." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to policy concerning proposed tobacco taxes and deliberative in that it reflects the suggestions of an EOP economist: REDACTED REDACTED. PRA172-0774. Further, the document does not contain information sufficiently relevant to Joint Defendants' claims of need.

66. PRA172-0792-0792 [CD 245]

"This document is a February 23, 1999 email from Charles F. Stone to Joshua Gotbaum characterizing and analyzing a working paper that attempts to determine price elasticity for youth smokers and the deterrent effect for policies restricting smoking in health care facilities and grocery stores." Gonzales Decl. Ex. A at 19. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States Gas, 617 F.2d at 866. Here, Mr. Stone merely relays the findings of a public working paper and does not appear to disclose the views of the agency. In addition, Plaintiff has not satisfied its "burden of establishing what deliberative process is involved, and the role played by the document in issue in the course of that process." Id. at 868.

67. PRA172-0797-0797 [CD 246]

"This document, which appears to be a response to Challenged Document #232, is an April 2, 1998 email from Jonathan Gruber to Rebecca M. Blank responding to Ms. Blank's comments in Challenged Document #232 and providing further support for his analysis." Gonzales Decl. Ex. A at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Administration's policy on determining the costs of tobacco and deliberative in that the response by Mr. Gruber reflects the give-and-take of the consultative process. Further, Mr. Gurber's observation that the REDACTED REDACTED is not sufficiently relevant to Joint defendants' claims of need.

68. PRA172-0829-0829 [CD 247]

"This document consists of two May 5, 1998 emails: (a) Sarah J. Reber to Aaron S. Edlin, raising questions about how the states would prove their case against the tobacco companies (as part of the CEA's [Council of Economic Advisors, EOP] review of the McCain legislation); (b) Mr. Edlin to Ms. Reber, responding to some of Ms. Reber's questions." Gonzales Decl. Ex. A at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment . . . The deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated. Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). There is no indication from an in camera review that the email exchange concerns the formulation of agency policy. Instead, the email discusses how the states would prove their case against the tobacco companies.

69. PRA172-0851-0851 [CD 252]

"This document is a September 1, 1997 email from Jonathan Gruber to Sarah J. Reber, responding to an earlier email from Ms. Reber about an unidentified meeting, and providing his characterization of a meeting that he attended with OMB and HHS representatives." Gonzales Decl. Ex. A at 20. Mr. Gonzales states that "[t]his document, although nominally about a tobacco budget meeting, does not include any responsive information." Id. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States Gas, 617 F.2d at 866. There is no indication from an in camera review that this document suggests an agency position or policy. The document is not "recommendatory in nature," "a draft of what will become a final document," or "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another." Id.

70. PRA172-1028-1029 [CD 274]

"This document contains two July 7, 2000 emails: (a) J. Eric Gould to Jason Furman, with copies to a group of White House personnel, suggesting the text for a statement concerning the Administration's proposals for comprehensive tobacco legislation to reduce youth smoking to accompany the President's regular radio address (with references to Republican attempts to create difficulties for the Department of Justice lawsuit); and (b) Karin Kullman to Mr. Gould, with copies to a group of White House personnel, responding to (a) with her contrary views as to what should be in the proposed statement." Rice Decl. at 34. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level presidential advisors who have responsibility for formulating advice to the President on the content of his radio address with regard to tobacco legislation, and the document contains a draft radio address to be delivered by the President himself. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, especially given that the radio address would be public.

71. PRA172-1262-1264 [CD 294]

"This document contains two August 2, 2000 emails: (a) Andrea Kane to Christina S. Ho, forwarding a draft February 2, 2000 statement entitled `President Clinton Takes New Steps to [Reduce] Youth Smoking and Hold the Tobacco Industry Accountable;' and (b) Ms. Ho to Ms. Kane, thanking her for (a)." Rice Decl. at 34. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level presidential advisors in the DPC who have responsibility for formulating advice to the President on the development of tobacco policy. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, as the document is a draft of a public announcement.

72. PRA172-1712-1713 [CD 318]

"This document contains three emails: (a) September 10, 1996 from James C. Murr to Lawrence J. Haas and John Gribben, with a copy to Ronald K. Peterson, informing them of internal comments made by Executive Branch agencies concerning a 1985 Sen. Helms tobacco proposal; (b) September 11, 1996, Mr. Gribben to Barry J. Toiv; and (c) September 18, 1996, Mr. Toiv to Mr. Haas, requesting that further research be done with respect to what the Executive Branch's position was with respect to the proposed legislation." Rice Decl. at 34. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "Plaintiff 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." Coastal States Gas, 617 F.2d at 866. Plaintiff has not done so here and in camera review only indicates that a request was made to determine whether the Administration took a position on the bill. Mr. Murr responds that REDACTED REDACTED. Mr. Toiv then requests that further research be done. The document does not "prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position."Coastal States Gas, 617 F.2d at 866.

73. PRA172-2360-2360 [CD 364]

"This document contains two May 22, 1997 emails: (a) Christopher C. Jennings to Elizabeth Drye discussing the formulation of the Administration's position on a proposed tobacco tax and its effect on the balanced budget agreement; and (b) Ms. Drye to Anne E. McGuire, forwarding (a)." Rice Decl. at 34-35. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Administration's position on a proposed tobacco tax and deliberative in that it prematurely discloses the views of the Administration before adoption: REDACTED REDACTED. PRA172-2360. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

74. PRA172-2452-2455 [CD 369]

"This document is a March 19, 1998 email from Cynthia A. Rice to Laura Emmett, forwarding two draft DPC weekly report items to the President concerning tobacco: (a) senior staff meeting with Sen. McCain, Sen. Hollings, and Senate staff to discuss tobacco legislation, including FDA authority; and (b) upcoming Vice President speech unveiling new Treasury Department statistics on youth smoking." Rice Decl. at 35. According to Ms. Rice, "[t]he third item is not responsive." Id. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Pages 172-2452-2453 contain non-substantive transmittal information and a hex dump. Pages PRA172-2454-2455, however, are entitled to protection because they were solicited and received by high-level presidential advisors in the DPC who have responsibility for advising the President on the development of tobacco policy, and contain portions of the report actually provided to the President. The pages are presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

75. PRA172-2535-2535 [CD 374]

"This document is a January 6, 1998 email from Jeffrey A. Forbes to Bruce N. Reed, with a copy to Janet Murguia, relating a conversation he had with a Senate staffer concerning possible tobacco legislation and seeking guidance as to what the Administration's position is with respect to working with the Senate on tobacco legislation." Rice Decl. at 35. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Administration's position on tobacco legislation and deliberative in that it reflects the give-and-take of the consultative process REDACTED REDACTED. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

76. PRA172-2618-2618 [CD 382]

"This document is a March 5, 1998 email from Jordan Tamagni to Megan C. Moloney providing an explanation of the purpose of a statement concerning tobacco." Rice Decl. at 35. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "The deliberative process privilege does not shield documents that simply state or explain a decision the government has already made . . ." In re Sealed Case, 121 F.3d at 729. Mr. Tamagni states: REDACTED REDACTED. PRA172-2618. It appears that Mr. Tamagni is solely explaining a decision the Administration already made; thus, the email should not be protected by the privilege.

77. PRA172-2794-2794 [CD 402]

"This document is a February 12, 1998 email from Sarah A. Bianchi to Joshua Silverman transmitting recommendations about how the President should discuss tobacco and other issues in an upcoming speech." Rice Decl. at 36. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was received by the WHO Assistant Press Secretary who has responsibility for formulating advice to the President on the development of tobacco policy REDACTED REDACTED. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial and in camera review does not so indicate.

78. PRA172-2839-2839 [CD 407]

"This document is a March 5, 1998 email from Megan C. Moloney to Elizabeth R. Newman and Nanda Chitre, forwarding and briefly characterizing the document described in Challenged Document #382." Rice Decl. at 36. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege for the same reasons given for Challenged Document 382. The forwarding email also indicates that the email solely explains a decision the Administration already made: REDACTED REDACTED.

79. PRA172-2852-2852 [CD 409]

"This document is a March 25, 1998 draft press guidance on Senate testimony about the cost of the President's tobacco proposal and the Treasury Department figures on the cost of smoking to the nation." Rice Decl. at 36. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document, as a draft, is predecisional to the final press guidance and deliberative because it reflects the proposals of the authors, not yet the policy of the agency. The Special Master does believe, however, that Joint Defendants have shown need for a portion of the document, namely the first QA relating to REDACTED REDACTED, which is relevant to the claims and defenses in this litigation. Further, the draft QA is not candid or personal in nature and there is no indication from Plaintiff that this information is available from other sources.

80. PRA172-3034-3034 [CD 418]

"This document is a February 3, 1998 email from Eli G. Attie to Paul E. Begala discussing Administration strategy for combating Republican plans on tobacco legislation." Gonzales Decl. Ex. A at 21; Brown Decl. § 15. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document was authored or received for the purpose of advising the President or that the communication reflects Presidential decisionmaking and deliberations. Further, the Special Master does not believe that the deliberative process privilege applies as the document does not reflect the deliberations of agency employees concerning policy; instead, the document discusses REDACTED REDACTED. PRA172-3034.

81. PRA172-3110-3110 [CD 422]

"This document is a March 10, 1998 email from Emily Bromberg to Fred DuVal, with a copy to Mickey Ibarra, providing instructions concerning the Administration's tobacco strategy with Congress." Rice Decl. at 36. Plaintiff asserts the deliberative process privilege.

The Special Master recommends overrule the claim of privilege. "To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment . . . The deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated." Petroleum Info. Corp., 976 F.2d at 1435. In camera review indicates that the communication relates to strategy REDACTED REDACTED, not the formulation of policy.

82. PRA172-3197-3198 [CD 427]

"This document contains two February 25, 1998 emails: (a) Thomas L. Freedman to Bruce N. Reed, Elena Kagan, Cynthia A. Rice, and Mary L. Smith, providing his specific proposals as to background information that should be provided to officials speaking for the Administration on tobacco legislation, including responses to common attacks on the proposed tobacco legislation; and (b) Ms. Kagan to Mr. Freedman, with copies to Mr. Reed and Ms. Rice, offering her opinion concerning Mr. Freedman's suggestions, including changes that should be made, and discussing further work to be done." Rice Decl. at 36-37. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document was authored or received for the purpose of advising the President or that the communications call for or reflect presidential decisionmaking. Instead, the emails concern compiling information to be provided to officials speaking for the Administration on tobacco legislation. The Special Master does believe that the deliberative process applies as the emails list and discuss several proposals and Ms. Kagan provides her opinion of these proposals. Further, in camera review does not indicate that the document is sufficiently relevant to Joint Defendants' need to justify disclosure.

83. PRA172-3201-3201 [CD 428]

"This document is a June 3, 1998 email from Thomas L. Freedman to Bruce N. Reed advising Mr. Reed of a meeting John Podesta had with certain senators and USDA and seeking Mr. Reed's guidance as to whether he wants to follow up on this meeting." Rice Decl. at 37. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document was authored or received for the purpose of formulating advice to be given the President or that it calls for direct decisionmaking by the President. The deliberative process privilege should apply, however, as the document reflects the deliberations of agency employees concerning the formulation of policy regarding REDACTED REDACTED. PRA172-3201. In camera review does not indicate that the email is sufficiently relevant to Joint Defendants' claims of need.

84. PRA172-3273-3273 [CD 435]

"This document is a June 19, 1998 email from Cynthia Dailard to Cynthia A. Rice, forwarding for Ms. Rice's review and comment her proposed revised language for the Agricultural Appropriations bill Statement of Administration Position." Rice Decl. at 37. Plaintiff asserts the presidential communications and deliberative process privileges. The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level presidential advisors in the DPC who have responsibility for formulating advice to the President on the development of tobacco policy. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains important evidence or that similar information is not available from other sources with due diligence as the final "Statement of Administration Position" on the Agricultural Appropriations bill would be public.

85. PRA172-3286-3287 [CD 437]

"This document is a June 15, 1998 email from Kate P. Donovan to a large group of White House and OMB officials transmitting and requesting review of and comments on a revised draft of a tobacco letter to be sent to Sen. McCain concerning a series of possible amendments to the McCain tobacco legislation concerning the State Litigation Settlement Account. The letter, when finalized, will state the Administration's position on those possible amendments." Rice Decl. at 37. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document was authored or received to formulate advice to the President or that it reflects presidential decisionmaking and deliberations. Jacob Lew, OMB Director, was to be the signatory to the letter and an OMB employee distributed the draft to various individuals for their review. Thus, the document should not be protected by the presidential communications privilege.

The Special Master recommends that the Court sustain the claim of deliberative process privilege. The document is predecisional to the Administration's position on the amendments and deliberative in that Ms. Donovan sends the draft to the recipients for their review and comments: REDACTED REDACTED. PRA172-3286. Further, the Special Master does not believe that Joint Defendants can show need for the document because the letter, in final form, would be public.

86. PRA172-3294-3295 [CD 439]

"This document contains three March 4, 1998 emails: (a) Bruce N. Reed to Joshua Gotbaum, with copies to Cynthia A. Rice and Elena Kagan, requesting an update from Mr. Gotbaum concerning the development of a possible proposal relating to the amount to be sought from the tobacco companies in the McCain legislation; (b) Mr. Gotbaum to Mr. Reed, with copies to Ms. Kagan, Ms. Rice, and Richard J. Turman, responding to (a) with a report on the proposal that OMB and the Treasury are developing; and (c) Ms. Rice to Mr. Gotbaum, with copies to Mr. Reed, Ms. Kagan, and Mr. Turman, responding to (b) and requesting further proposed language from Mr. Gotbaum to be given to the Senate negotiators." Rice Decl. at 38. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the emails were authored or received for the purpose of advising the President or that they reflect presidential decisionmaking. The emails should be protected by the deliberative process privilege as they reflect the give-and-take of the consultative process concerning the development of a proposal relating to the amount to be sought from the tobacco companies in the McCain legislation. Further, in camera review does not indicate that the document is sufficiently relevant to Joint Defendants' claims of need to justify disclosure.

87. PRA172-3357-3357 [CD 445]

"This document is a February 26, 1998 email from Thomas L. Freedman to Bruce N. Reed offering his opinions, and seeking Mr. Reed's guidance, concerning negotiating with Sen. McCain on tobacco legislation and Rep. Gingrich on drugs/youth smoking." Rice Decl. at 38. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors of the DPC who have responsibility for formulating advice to the President on the McCain legislation. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

88. PRA172-3381-3400 [CD 446]

"This document contains two October 30, 1998 emails from Cynthia Rice: (a) to Bruce N. Reed, Elena Kagan, and Laura Emmett, with a copy to Andrea Kane, transmitting a "new ideas memos" that DPC gave to Paul Weinstein the day before for his use in preparing a memorandum to the President; and (b) to Ms. Kane, re-sending the memos. The memo, entitled `Tobacco Budget Provisions (October 29, 1998),' presents detailed suggestions for a `multi-pronged effort to reduce teen tobacco use, involving possible settlements and executive actions.' It includes suggestions for legislation, including concerning recoupment, as well as for a number of other executive actions on counter-advertising, smoking cessation, and other issues." Rice Decl. at 38. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Pages PRA172-3382-3396 only contain unreadable hex dumps. Pages PRA172-3381 and PRA172-3397-3400 were solicited and received by high-level presidential advisors who have responsibility for formulating advice to the President on tobacco issues, and contain portions of a memorandum intended for delivery to the President. Ms. Rice writes: REDACTED REDACTED. PRA172-3381. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

89. PRA172-3445-3445 [CD 450]

"This document contains two July 6, 1998 emails: (a) Bruce N. Reed to Cynthia A. Rice, offering his views as to the methodology to be used by Treasury and OMB in their analysis of a House Republican tobacco bill, along with his views as to some of the provisions in that bill; and (b) Ms. Rice to Mr. Reed, with a copy to Cynthia Dailard, responding to (a) and offering her own views concerning certain of the provisions in that bill." Rice Decl. at 39. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Administration's position on the House Republican tobacco bill and deliberative in that it reflects the personal views of Mr. Reed and Ms. Rice. For example, Ms. Rice writes: REDACTED REDACTED. PRA172-3445. Further, there is no indication from an in camera review that the document is sufficiently relevant to Joint Defendants' claims of need.

90. PRA172-3481-3481 [CD 454]

"This document contains two May 14, 1998 emails: (a) Elena Kagan to Kevin S. Moran providing her assessment of the status of the McCain tobacco legislation following her negotiations with Sens. McCain and Hollings; and (b) Ms. Kagan to Jason S. Goldberg, with a copy to Laura Emmett, forwarding (a)." Rice Decl. at 39. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document was prepared prior to a determination of whether the Administration should support the McCain legislation and/or propose changes to it and deliberative in that the document reflects the proposals of the EOP that were not yet the policy of the agency: REDACTED REDACTED. PRA172-3481. Further, in camera review does not indicate that the email is sufficiently relevant to Joint Defendants' claim of need, as the discussions involve REDACTED REDACTED, which Joint Defendants have not demonstrated are relevant to their need.

91. PRA172-3482-3482 [CD 455]

"This document is a January 30, 1998 email from Mary L. Smith from Thomas L. Freedman forwarding draft press guidance (to be used in connection with the upcoming Budget release) concerning the Administration's views as to whether it believes there will be comprehensive tobacco legislation and whether such legislation is required to pay for the Administration's proposed tobacco initiatives." Rice Decl. at 39. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The press guidance, as a draft, is predecisional to the final release and deliberative in that it is a recommendation and not yet the policy of the agency. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and because the discussions involve the effect of tobacco proceeds on the budget, which Joint Defendants have argued are relevant to their now-dismissed affirmative equitable defenses.

92. PRA172-3529-3543 [CD 458]

"This document is two April 26, 1998 emails from Cynthia A. Rice to a large group of White House personnel forwarding a draft statement entitled `President Says New Surgeon General's Report Underscores the Need for Comprehensive Bipartisan Tobacco Legislation,' and draft press guidance concerning the Surgeon General's report and other tobacco issues." Rice Decl. at 39. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited received by high-level presidential advisors who have responsibility for formulating advice to the President on tobacco legislation, and the document itself is an announcement of proposed presidential decisionmaking. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence, especially as the statement and information in the press guidance was for public use.

93. PRA172-3557-3559 [CD 460]

"The withheld portion of this document, page PRA172-3557, is a June 15, 1998 email from Bruce N. Reed to Lowell A. Weiss containing Mr. Reed's personal observation about Mr. Weiss' efforts with respect to a tobacco presentation." Rice Decl. at 40. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege for this page. Plaintiff "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."Coastal States Gas, 617 F.2d at 868. Plaintiff has not established the deliberative process involved or the role played in the course of that process by a document regarding a tobacco presentation to a REDACTED REDACTED.

94. PRA172-3607-3609 [CD 461]

"This document is a June 22, 1998 memorandum from Charles Marr to Gene Sperling providing background information concerning and his analysis of Sen. Feinstein's proposed tobacco bill and her positions on tobacco. Mr. Marr also includes his analysis of Sen. Hatch's tobacco proposals and a possible Hatch/Feinstein proposal. He further includes an excerpt of Sen. Feinstein's Senate statements on tobacco, putting in bold those portions that he considers to be significant." Rice Decl. at 40. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document was authored or received to formulate advice to be given the President. Instead, it appears that Mr. Marr was providing background information and suggesting a position on Hatch/Feinstein for Mr. Sperling: REDACTED REDACTED. PRA172-3607. The deliberative process privilege should apply, however, as the document reflects the deliberative process by which Administration policy is formulated regarding tobacco legislation. Further, there is no indication that the document is sufficiently relevant to Joint Defendants' claims of need to justify disclosure.

95. PRA172-3611-3614 [CD 462]

"This document is an April 20, 1998 email from Cynthia Dailard to Laura Emmett, with a copy to Cynthia A. Rice, transmitting an April 20, 1998 memorandum from Bruce N. Reed for Chief of Staff Erskine Bowles providing talking points based upon the President's tobacco statement that day. Mr. Reed suggests statements that the Chief of Staff might want to make if he is asked about tobacco." Rice Decl. at 40. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Pages PRA172-3611-3613 only contain non-substantive information and unreadable hex dumps. Further, there is no indication that page PRA172-3614 was authored or received to formulate advice to the President. Instead, the document was created to provide talking points for the Chief of Staff on a public statement made by the President that day. In addition, the deliberative process privilege should not apply because the talking points relate to policy the Administration already made and were prepared to further explain that policy.

96. PRA172-3615-3617 [CD 463]

"This document is an April 8, 1998 email from Charles R. Marr to Brian A. Barretto forwarding an April 7 email from Mr. Marr to Melissa G. Green, with copies to Jonathan A. Kaplan and Dorothy Robyn, providing, for Gene Sperling, a report on and analysis of a tobacco (and other topics) legislative strategy meeting in Chief of Staff Erskine Bowles' office. The tobacco discussion presents the views of individual senior White House staff members about concerns they have with, and their views of the prospects of, the McCain tobacco legislation." Rice Decl. at 40-41. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level presidential advisors who have responsibility for formulating advice to the President on tobacco issues such as the McCain legislation. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence.

97. PRA172-3628-3675 [CD 464]

"This document contains two June 17, 1998 emails: (a) Lesley A. Pate to Cynthia A. Rice and Cynthia Dailard transmitting a detailed "Tobacco Amendments Matrix and Comments," that sets forth the position, with comments, of various Executive Branch agencies concerning the many amendments offered to the McCain tobacco bill; and (b) Ms. Dailard to Ms. Rice, noting that the White House still does not have comments from two Executive Branch agencies. Also included with this document are more detailed assessments of certain of the amendments, with comments by certain Executive Branch agencies with their positions on those amendments and the reasons for those positions." Rice Decl. at 41. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-3628 only contain non-substantive information and an unreadable hex dump, and page PRA172-3629 is largely blank. Pages PRA172-3630-3675, however, are predecisional to an Administration position on the McCain bill and deliberative in that they reflect the give-and-take among the agencies. Further, the Special Master does not believe that Joint Defendants have shown how various agency positions on McCain bill amendments are relevant to the claims and defenses in this litigation.

98. PRA172-3676-3707 [CD 465]

"This document is a March 6, 1998 email from Cynthia A. Rice to Laura Emmett transmitting draft memoranda from Bruce N. Reed to Chief of Staff Erskine Bowles to prepare Mr. Bowles for negotiations with certain senators and representatives concerning comprehensive tobacco legislation. Each of the memos includes talking points for each of the senators and representatives with whom Mr. Bowles is to meet, including suggestions for negotiation points." Rice Decl. at 41. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Pages PRA172-3676-3695 only contain non-substantive information and an unreadable hex dump. Further, there is no indication that pages PRA172-3696-3707 were authored and received to formulate advice to the President. Instead, the memoranda were prepared for Mr. Bowles to provide background information and talking points for his meetings with members of Congress. Pages PRA172-3696-3707 should be protected by the deliberative process privilege, however, as they contain suggestions regarding the formulation of policy-related positions and decisions. In addition, in camera review does not indicate that the documents are sufficiently relevant to Joint Defendants' claims of need.

99. PRA172 3723-3749 [CD 468]

"The withheld portion of this document is six emails: (a) April 10, 1998, Cynthia A. Rice to a group of White House and OMB personnel alerting them that there soon will be press guidance to be used for the weekend talk shows; (b) April 10, 1998, Ms. Rice to a large group of White House and OMB personnel, transmitting the press guidance; (c) April 11, 1998, Richard J. Turman to a large group of OMB personnel, forwarding (b); (d) April 13, 1998, Mark E. Miller to Joshua Gotbaum, Mr. Turman, Barry T. Clendenin, and Jill M. Pizzuto, raising a concern that one of the positions set forth in the press guidance differs from what he understood the Administration position to be and asking about the new position; (e) April 14, 1998, Mr. Gotbaum to Ms. Rice, with copies to Mr. Miller, Mr. Turman, Christopher C. Jennings, and Jeanne Lambrew, forwarding (d), offering his comments with respect to Mr. Miller's concerns, and suggesting an alternative answer to that found in the press guidance that raised Mr. Miller's concerns; and (f) Mr. Jennings to Sarah A. Bianchi, forwarding (a)-(e)." Rice Decl. at 41-42. Plaintiff asserts the deliberative process privilege.¹²

12 Plaintiff released pages 3740-3749. See Reply Ex. 1 (8/7/03 Letter from M. Burrell to N. Nierengarten).

The Special Master recommends that the Court sustain the privilege for pages PRA172-3723-3724, which are predecisional to the formulation of the tobacco QA and reflect the concern from Mr. Miller as to one position set forth in the press guidance and Mr. Gotbaum's response and suggested alternative answer. Pages PRA172-3725-3739 are not entitled to protection as they only contain transmittal information and a hex dump. There is no indication that Joint Defendants' have a sufficient need for the internal deliberations contained at pages PRA172-3723-3724 as Plaintiff apparently has released the actual press guidance.

100. PRA172-3787-3790 [CD 469]

"This document is a May 20, 1998 email from Sarah A. Bianchi to Barry J. Toiv transmitting a draft `Press Statement' concerning (a) proposed legislation relating to tobacco farmers (Sens. Ford and Hollings; Sen. Lugar); and (b) the cancer clinical trials in the McCain tobacco legislation. Ms. Bianchi notes that this version may be changed — `I sent this to Bruce [Reed] who may have changes . . .'" Rice Decl. at 42. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Pages PRA172-3787-3789 only contain non-substantive information already revealed in the declaration of Ms. Rice and an unreadable hex dump and are therefore not protected. Page PRA172-3790 is predecisional and deliberative as it is a draft and does not yet reflect the policy of the agency. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as a press statement addressing the proposed Administration position on the Lugar Amendment and the McCain bill, the same or similar information is likely available from other sources.

101. PRA172-3907-3912 [CD 486]

"This document is a June 1, 1998 email from Cynthia Dailard to Fred DuVal explaining why the Administration took the position it did concerning Sen. Gregg's amendment to get rid of the liability cap in the McCain tobacco bill and the Administration's position on Sen. Durbin's lookback amendment, explaining the reasons for that position, and providing her view of what the Administration will say about the proposal if pressed." Rice Decl. at 42. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications privilege and deliberative process privilege. Pages PRA172-3908-3912 only contain unreadable hex dumps. Further, there is no indication that Page PRA172-3907 calls ultimately for direct decisionmaking by the President or that the document was authored or received to formulate advice to the President on the issue. In addition, the deliberative process privilege should not apply as the document reflects decisions already made, namely, REDACTED REDACTED.

102. PRA172-3955-3974 [CD 492]

"This document is a June 12, 1998 email from Lesley A. Pate to Cynthia Dailard and Cynthia A. Rice forwarding an updated version of the table showing positions taken by various Executive Branch agencies and components concerning the proposed amendments to the McCain tobacco legislation. This table is to be used by the Administration to determine its positions to be conveyed to the Senate concerning the amendments." Rice Decl. at 42-43. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Pages PRA172-3955-3969 only contain non-substantive information and an unreadable hex dump. Pages PRA172-3970-3974, however, are predecisional to the Administration's determination of the position to take on the McCain legislation and deliberative in that it reflects the internal give-and-take among the agencies. Further, the Special Master does not believe that whether certain agencies oppose or support certain amendments to the McCain bill are relevant to their claims of need.

C. Executive Branch deliberations regarding possible recoupment by the Federal Government of the medical-related portion of the states' recovery under litigation, legislation, or settlement with the tobacco companies

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

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

Joint Defendants contend that, to the extent that "discussions and communications contained in these documents relate to whether the proceeds from the MSA constitute federal revenues, and whether the Federal government should seek recoupment from the states," these documents are related to the affirmative equitable defenses. Mot. App. B at 17.

They also assert that the President's signing of the Emergency Supplemental Appropriations Act, which waived any recoupment right the government had without requiring the states to enforce their youth access laws, "reflected a significant opportunity for the Federal government to achieve the goal of reducing youth smoking by conditioning waiver of its claim for Medicaid recoupment on state enforcement of youth access laws." Id. at 19.

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

1. PRA171-1807-1808 [CD 1]

"This document consists of two June 12, 1999 emails discussing disagreements between the White House and OMB about language to be included in the FY 2000 Budget relating to federal recoupment and tobacco farmers' assistance: (a) Cynthia Rice to Bruce N. Reed, Elena Kagan, and Laura Emmett, with copies to J. Eric Gould and Thomas L. Freedman, discussing those differences and offering her suggestion as to new language intended to resolve the differences, and (b) Elena Kagan to Cynthia A. Rice, with copies to J. Eric Gould, Bruce N. Reed, Thomas L. Freedman, and Laura Emmett responding to (a) and offering her own further edits to Ms. Rice's edits." Rice Decl. at 44. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors who have responsibility for formulating advice to the President on language to include in the FY2000 budget regarding tobacco, which calls for ultimate decisionmaking by the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains important evidence¹³ or that similar information is not available from other sources with due diligence.

13 Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. As these defenses are no longer a part of this case, this evidence cannot be considered directly relevant to a central issues in this case.

2. PRA171-2264-2266 [CD 33]

"This document is a May 3, 1999 email from Thomas L. Freedman to Cynthia A. Rice discussing possible negotiations, including with tobacco farmers, concerning the supplemental appropriations bill that includes the Sen. Hutchison amendment barring recoupment." Rice Decl. at 44. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Administration decision on the supplemental appropriations bill and deliberative in that it reflects the give-and-take among the agencies and the suggestions of Mr. Mendelson. Mr. Mendelson writes: REDACTED REDACTED. PRA172-2265.

Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. Because these defenses have since been dismissed from this case, the Special Master does not believe that they are sufficiently relevant to this case to justify overcoming Plaintiff's privilege interest.

3. PRA171-2321-2321 [CD 35]

"This document is a January 6, 1999 email from Fred DuVal to Elena Kagan requesting her opinion on the issue of possible HHS settlements with individual states on recoupment." Rice Decl. at 44. Plaintiff asserts the attorney-client privilege and deliberative process privilege.

The Special Master recommends that the Court sustain the claim of attorneyclient privilege. The document reveals a confidential request for legal advice REDACTED REDACTED from Mr. DuVal to Ms. Kagan, an attorney in the EOP.¹⁴

14 Because the attorney-client privilege offers greater protection than the deliberative process privilege, inasmuch as a showing of need cannot overcome the attorney-client privilege, the Special Master does not address the deliberative process privilege claim.

4. PRA171-2443-2444 [CD 41]

"This document is a February 22, 1999 email from Barry J. Toiv to Elizabeth R. Newman, with a copy to Cynthia A. Rice, transmitting and seeking Ms. Rice's approval of revised press guidance, `Tobacco Recoupment Policy.'" Rice Decl. at 45. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The press guidance, as a draft not yet adopted by the Administration, is predecisional and deliberative. The email indicates the predecisional status: REDACTED REDACTED. PRA172-2443. Moreover, the Special Master does not believe that Joint Defendants have shown need as the document is not relevant to their assertions of need, as set forth above, and as they would have access to any final statements made to the press on this issue.

5. PRA171-2449-2450 [CD 42]

"This document is a February 3, 1999 email from J. Eric Gould to Laura Emmett (for Elena Kagan) transmitting a draft `Statement on Medicaid Tobacco Recoupment' setting forth Mr. Gould's proposed statement on the Administration's position on legislation that prevents federal recoupment of the states' settlement, and outlines a plan to work with the states and Congress to enact alternative tobacco legislation." Rice Decl. at 45. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA171-2449 only contains nonsubstantive information and an unreadable hex dump. Page PRA171-2450 was authored and received by high-level presidential advisors who have responsibility for formulating advice to the President, in the form of a suggested presidential policy statement on the proposed Medicaid recoupment. The page is presumptively privileged, and 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 or that similar information is not available from other sources with due diligence. Accordingly, Joint Defendants' claimed need does not outweigh the presumptively privileged status afforded this document.

6. PRA171-2529-2530 [CD 47]

"This document is a May 14, 1999 email from J. Eric Gould to Cynthia A. Rice, transmitting and discussing very briefly draft press guidance concerning the Sen. Hutchison recoupment amendment. Mr. Gould seeks Ms. Rice's guidance on the current Administration position on this amendment." Rice Decl. at 45. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The press guidance, as a draft, is predecisional and deliberative in that it is a proposal not yet adopted by the Administration. The email supports the predecisional status: REDACTED REDACTED. PRA171-2529. Moreover, the Special Master does not believe that Joint Defendants have shown need for this document, as it is not relevant to their need claims set forth above, in that it does not address the reasons why the government chose to waive recoupment, and instead addresses the terms of the settlement and the Administration's position on current tobacco-related events. Additionally, Joint Defendants do have access to any final version of the tobacco QA containing the Administration's actual position on these issues.

7. PRA171-2611-2612 [CD 52]

"This document is a March 5, 1999 email from J. Eric Gould to Cynthia A. Rice transmitting and discussing briefly draft press guidance concerning recoupment. Mr. Gould includes his suggestions for one of the answers and seeks Ms. Rice's guidance concerning that suggestion." Rice Decl. at 45. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The press guidance, as a draft, is predecisional and deliberative in that it is a proposal not yet adopted by the Administration. The email supports the deliberative status: REDACTED REDACTED. PRA171-2611. The Special Master does not believe that Joint Defendants have shown need for this document, as they have not demonstrated that the government's predecisional deliberations regarding the Hutchinson Amendment are relevant to this matter. Additionally, they have argued that discussions relating to the government's claim to the state settlement are relevant to their affirmative equitable defenses, which are no longer part of this case. Finally, Joint Defendants do have access to any final government press releases on this issue.

8. PRA171-3444-3444 [CD 83]

"This document consists of two February 18, 1999 emails: (a) Sarah A. Bianchi to Cynthia A. Rice and J. Eric Gould, requesting for the Vice President whatever materials the President is getting on recoupment; and (b) Mr. Gould to Ms. Bianchi, responding to (a) and indicating that the talking points on federal recoupment, including explaining the internal difficulties encountered in preparing materials on recoupment." Rice Decl. at 46. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege because Plaintiff has not demonstrated that the emails were authored and received for the purpose of advising the President. The deliberative process privilege should apply, however, because the emails reflect the requests and observations of agency employees in preparing materials on recoupment. Mr. Gould indicates that REDACTED REDACTED. PRA171-3444. Further, Joint Defendants have not shown need for this document as the emails are not relevant to their claims of need and the comment contained therein is personal and candid in nature.

9. PRA171-3949-3949 [CD 93]

"This document contains two November 21, 1997 emails: (a) Fred DuVal to Donald H. Gips, Toby Donenfeld, and Charles W. Burson, providing a status report on the hearings concerning tobacco Medicaid recoveries, explaining the position that some senators are taking on this issue of state recoupment and the likely effects of this issue at upcoming NAAG and NGA meetings, and seeking guidance on how to address pending legislation that allows for full state recovery provided that money is spent in a prescribed way, and (b) Mr. Gips to Christopher C. Jennings, with a copy to Sarah A. Bianchi, requesting a status report on the issues discussed in the first in time email." Rice Decl. at 46. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The email is predecisional to an Administration decision on legislation addressing tobacco Medicaid recoveries and deliberative in that Mr. Duval requests guidance on how to handle the issue. The Special Master also does not believe that these communications are relevant to Joint Defendants' claimed need as they do not address government discussions of whether the MSA in and of itself is a sufficient deterrent to youth smoking, or to the reasons why the government should not seek recoupment; therefore there is not sufficient need to overcome Plaintiff's privilege interest.

10. PRA172-0141-0142 [CD 147]

"This document is a May 14, 1999 email from Cynthia A. Rice to Laura Emmett, with copies to Devorah R. Adler and J. Eric Gould, transmitting draft tobacco press guidance concerning the Sen. Hutchison amendment on recoupment." Rice Decl. at 46. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0141 only contains non-substantive information and a hex dump. Page PRA172-0142, however, appears to be related to the draft contained at page PRA171-2530 of Challenged Document 47, and contains draft press guidance that is predecisional and deliberative because it is a proposal not yet adopted by the Administration. Similar to the recommendation for Challenged Document 47, the Special Master does not believe that Joint Defendants have established sufficient relevancy of the information contained in this document, as well as unavailability from other sources, to enable them to overcome Plaintiff's privilege interest in this document.

11. PRA172-0144-0144 [CD 149]

"This document is a May 6, 1999 email from Libbie Buchele to Eugenia Chough providing her opinion on the likelihood of passage of Sen. Hutchison's proposed recoupment amendment and Rep. Obey's alternative legislative proposal." Rice Decl. at 46. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Plaintiff "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." Coastal States Gas, 617 F.2d 868. Plaintiff has not done so here. There is no indication from the declaration of Ms. Rice or in camera review of the document the deliberative process involved or the role played by this email.

12. PRA172-0304-0305 [CD 161]

"This document is a March 15, 1999 email from Laura Emmett to Cynthia A. Rice transmitting draft press guidance concerning recoupment." Rice Decl. at 47. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0304 only contains non-substantive transmittal information and a hex dump. Page PRA172-0305, however, contains draft press guidance that is predecisional and deliberative because it is a proposal not yet adopted by the Administration. The Special Master does not believe that Joint Defendants have shown need for this document, as the draft press guidance does not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor does it reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Therefore, it is not sufficiently relevant to justify overcoming Plaintiff's privilege claim. Moreover, Joint Defendants do have access to any final statements made to the press on this issue.

13. PRA172-0311-0312 [CD 163]

"This document is a February 3, 1999 email from J. Eric Gould to Laura Emmett transmitting draft press guidance regarding recoupment and requesting that Ms. Emmett provide the draft to Cynthia A. Rice for Ms. Rice's review." Rice Decl. at 47. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0311 only contains non-substantive information that is already revealed in the declaration of Ms. Rice and a hex dump. Page PRA172-0312, however, contains draft press guidance that is predecisional and deliberative because it is a proposal not yet adopted by the Administration.

The Special Master does not believe that Joint Defendants have shown need for this document, as the draft press guidance does not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor does it reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Therefore, it is not sufficiently relevant to justify overcoming Plaintiff's privilege claim. Moreover, Joint Defendants do have access to any final statements made to the press on this issue.

14. PRA172-0318-0323 [CD 164]

"This document consists of three emails: (a) February 9, 1999, Joshua Gotbaum to Ingrid M. Schroeder, with copies to Cynthia A. Rice and a group of OMB personnel, transmitting re-drafted press guidance concerning recoupment to be used by HHS Secretary Shalala; (b) February 10, 1999, Cynthia A. Rice to Laura Emmett, forwarding (a) and asking that the draft be given to Elena Kagan for her review; and (c) February 10, 1999, Ms. Rice to J. Eric Gould, forwarding (a) and (b)." Rice Decl. at 47. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0318 only contains non-substantive information that is already revealed in the declaration of Ms. Rice. Pages PRA172-0319-0323, however, contain draft press guidance that is predecisional and deliberative because it reveals a proposal not yet adopted by the Administration.

The Special Master does not believe that Joint Defendants have shown need for the portions of the document found to be privileged. Here, the press comments address primarily questions of recoupment as it relates to the federal budget; Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses, which are no longer a part of this case. Moreover, pages 172-0319 through 172-0321, contain a redline version of the previous draft and therefore reflect the process by which EOP employees revised the draft; the Special Master believes that release of such information could have a chilling effect on future deliberations. Finally, Joint Defendants do have access to any final press guidance on these issues, therefore similar information is available to them from other sources.

15. PRA172-0382-0382 [CD 168]

"This document is a January 7, 1999 email from Cynthia A. Rice to J. Eric Gould providing her opinion/analysis as to future recoupment recovery by the federal government." Rice Decl. at 47. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Plaintiff "has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States Gas, 617 F.2d at 868. There is no indication from the declaration of Ms. Rice or in camera review of the deliberative process involved or the role played by this email. Ms. Rice, in the subject line of her email, describes her comments as REDACTED REDACTED. PRA172-0382. "[I]n most situations factual summaries prepared for informational purposes will not reveal deliberative processes and hence should be disclosed." See Paisley v. CIA, 712 F.2d 686, 699 (D.C. Cir. 1983), vacated in part on other grounds, 724 F.2d 201 (D.C. Cir. 1984) The email does not appear to be "recommendatory in nature," "a draft of what will become a final document" or "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another."Coastal States Gas, 617 F.2d at 866.

16. PRA172-0434-0436 [CD 179]

"This document is a March 15, 1999 email from J. Eric Gould to Laura Emmett and Courtney O. Gregoire transmitting draft press guidance regarding recoupment." Rice Decl. at 48. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0434 only contains non-substantive transmittal information and a hex dump. Pages PRA172-0435-0436, however, contain draft press guidance that is predecisional and deliberative because it reveals a proposal not yet adopted by the Administration.

The Special Master does not believe that Joint Defendants have shown need for the privileged portion of this document, as the draft press guidance does not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor does it reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Therefore, it is not sufficiently relevant to justify overcoming Plaintiff's privilege claim. Moreover, Joint Defendants do have access to any final statements made to the press on this issue.

17. PRA172-0450-0450 [CD 184]

"This document is a March 2, 1999 email from Thomas L. Freedman to Bruce N. Reed providing his views as to how Sen. Robb may vote on Sen. Hutchison's recoupment amendment and seeking Mr. Reed's reaction to his suggestion as to an approach to persuade Sen. Robb not to support the amendment." Ride Decl. at 48. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Communications involving high-level Presidential advisors made for the purpose of soliciting and receiving information to formulate advice to be given to the President are presumptively privileged. Plaintiff, however, has not demonstrated how the information discussed was for the purpose of advising the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President.").

The Special Master does believe that the deliberative process applies because the document contains a suggestion by Mr. Freedman with regard to proposed recoupment legislation. Further, review of the email does not indicate that it is relevant to Joint Defendants' claims of need.¹⁵

15 Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. Because these defenses are no longer part of this case, the Special Master does not believe that this email is sufficiently relevant to the remaining claims and defenses to justify overcoming Plaintiff's privilege interest.

18. PRA172-0456-0463 [CD 185]

"This document consists of two emails: (a) February 12, 1999, William H. White to Cynthia A. Rice, Tanya E. Martin, and Wesley P. Warren, with copies to Paul J. Weinstein, Fred DuVal, and Maria E. Soto, listing topics to be discussed at a meeting between the President and the National Governors Association and soliciting assistance in preparing briefing materials for the President; and (b) February 15, 1999, Ms. Rice to Mr. White, with a copy to J. Eric Gould, forwarding certain draft materials that may assist Mr. White and offering her suggestion on how the President should respond to questions about recoupment." Rice Decl. at 48. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative in that it contains draft materials to assist Mr. White in preparing briefing materials for the President. The emails also contain the suggestions of Ms. Rice: REDACTED REDACTED. PRA172-0456.

The Special Master does not believe that Joint Defendants have shown need for these discussions or the attached briefing materials, which address issues such as this lawsuit, which is not responsive; tobacco farmers, which Joint Defendants have argued is an issue relevant to their now-dismissed affirmative equitable defenses; and the impact that recoupment (or lack thereof) could have on the budget, which Joint Defendants have also argued is relevant to their now-dismissed affirmative equitable defenses. The Special Master therefore does not believe that these documents are sufficiently relevant to the remaining claims and defenses and to Joint Defendants assertions of need to justify overcoming Plaintiff's privilege interest.

19. PRA172-0464-0471 [CD 186]

"This document consists of three emails: (a) March 10, 1999, Lester Cash to Richard J. Turman and William G. White, transmitting draft tobacco press guidance from HHS concerning federal tobacco tax revenues, recoupment, and other tobacco matters, and noting an error in one of the answers prepared by DPC; (b) March 12, 1999, Mr. White to Cynthia A. Rice, forwarding (a); and (c) March 12, 1999, Ms. Rice to Daniel N. Mendelson and Joshua Gotbaum, with copies to Mr. White, Mr. Turman, J. Eric Gould, and Ingrid M. Schroeder, offering her overall opinion of the HHS draft guidance and proposing edits to some of the proposed answers." Rice Decl. at 49. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The draft press is predecisional and deliberative because it reveals a proposal not yet adopted by the Administration. The emails also reflect the predecisional and deliberative nature of the document because they reflect the suggestions and edits of Ms. Rice: REDACTED REDACTED. PRA172-0464.

The Special Master does not believe that Joint Defendants have shown need for this document, as the draft questions and answers do not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor do they reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Instead, the topics addressed include issues of budgetary impact, the potential federal lawsuit against the tobacco industry, and possible spending of funds. Joint Defendants have not established need for these topics. Moreover, Joint Defendants do have access to any final statements made to the Congress or the media on these issues, and therefore have not established that similar information is not available from other sources.

20. PRA172-0492-0496 [CD 190]

"This document consists of two March 5, 1999 emails, with draft documents attached: (a) Nicole R. Rabner to Cynthia A. Rice, requesting information as to the status of the Administration's discussions with Sen. Conrad concerning recoupment; and (b) Ms. Rice to Ms. Rabner, responding to (a) with her assessment as to how matters stand. Ms. Rice attaches two draft papers presenting an Administration recoupment proposal." Rice Decl. at 49. Plaintiff asserts the deliberative process privilege.¹⁶

16 Plaintiff released page PRA172-0496.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the Administration's position on recoupment and deliberative in that the document reflects proposals and suggestions for review and discussion.

The Special Master does not believe that Joint Defendants have established need for this document as the discussions contained herein do not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor do they reveal why the government waived the opportunity to recoup federal expenditures from the settlement. To the contrary, it contains discussions regarding legislation to require recoupment. Therefore, Joint Defendants have not established that the portions claimed privileged are sufficiently relevant to justify overcoming Plaintiff's privilege claim.

21. PRA172-0620-0628 [CD 207]

"This document consists of four emails that duplicate in part and follow up on Challenged Document #164: (a) the February 9, 1999 email from Joshua Gotbaum to Ingrid M. Schroeder, with attachments, that is described in Challenged Document #164; (b) February 16, 1999, Cynthia A. Rice to Mr. Gotbaum and Daniel Mendelson, with copies to a group of OMB personnel, providing further edits to the documents based upon her discussions with Rich Tarplin; (c) February 19, 1999, Ms. Rice to Victoria A. Wachino, with a copy to J. Eric Gould, expressing concern about whether (b) was delivered; and (d) February 19, 1999, Ms. Rice to Ms. Wachino, forwarding the above email exchange and suggesting that the attached papers be used by HHS Secretary Shalala in place of the ones that she already has." Rice Decl. at 49. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document contains draft press guidance concerning recoupment that is predecisional and deliberative because it reveals a proposal not yet adopted by the Administration and the emails reflect the give-and-take of the consultative process. Additionally, consistent with the recommendation for Challenged Document #164, the Special Master does not believe that Joint Defendants have established need for this document sufficient to justify overcoming Plaintiff's privilege claim.

22. PRA172-0643-0647 [CD 210]

"This document is a July 29, 1999 email from Cynthia A. Rice to Joshua Gotbaum, with a copy to J. Eric Gould, transmitting for review and comment three draft Treasury documents entitled `Tobacco Technical Assistance,' `Recoupment Legislative Proposal,' and `Definitions for Medicaid Recoupment,' and discussing two of the issues covered by these drafts — estimating tobacco company profits on teen smokers and a tobacco farmers trust fund." Rice Decl. at 49-50. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Administration position on tobacco recoupment and deliberative in that the draft document and email reflects the suggestions of the authors.

The Special Master does not believe that Joint Defendants' need for this document outweighs Plaintiff's privilege claim. Here, while the document contains a specific proposal intended to reduce youth smoking, the document addresses the impact that such proposal will have on the federal budget, which Joint Defendants have argued is relevant to the since-dismissed affirmative equitable defenses. The document does not address any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor does it reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Therefore, it is not sufficiently relevant to justify overcoming Plaintiff's privilege claim.

23. PRA172-0648-0654 [CD 211]

"This document, which duplicates in part Challenged Documents ##164 and 207, consists of three emails: (a) the February 9, 1999 email from Joshua Gotbaum, with attachments, that is described in Challenged Document #164; (b) February 11, 1999, Cynthia A. Rice to J. Eric Gould, transmitting (a) with instructions for changes to be made; and (c) February 11, 1999, Mr. Gould to Ms. Rice, transmitting the revised draft (0654)." Rice Decl. at 50. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document contains draft press guidance concerning recoupment that is predecisional and deliberative because it reveals a proposal not yet adopted by the Administration and the emails reflect the give-and-take of the consultative process. Additionally, consistent with the recommendation for Challenged Document 164, the Special Master does not believe that Joint Defendants have shown need for this document.

24. PRA172-2192-2194 [CD 349]

"This document is an October 29, 1996 email from Vivian Grishkot to a group of White House personnel forwarding an October 29, 1996 memorandum from Mary Beth Donohue to the President listing `Hot Issues' concerning certain localities, including a report on efforts by HCFA (Health Care Financing Administration) to work with states to ensure federal government recovery of its share of tobacco lawsuit payments." Rice Decl. at 50.¹⁷ Plaintiff asserts the presidential communications and deliberative process privileges.

17 Ms. Rice states that "[m]ost of the document is non-responsive." Rice Decl. at 50.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was received by the President and also transmitted to his high-level advisors who have responsibility for formulating advice to the President on issues such as tobacco. The document relays that REDACTED REDACTED. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that it is directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

25. PRA172-2531-2531 [CD 373]

"This document is a November 25, 1997 email from Emily Bromberg to Fred DuVal, with a copy to Mickey Ibarra, discussing the Administration position and strategy concerning recoupment." Rice Decl. at 50. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The email was generated prior to the Administration's decision on recoupment and is deliberative in that it reveals the suggestions and strategy proposed by EOP employees. The Special Master does believe that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. Here, the document addresses the Administration's proposal regarding recoupment and why to take that approach REDACTED REDACTED. Therefore, this discussion could provide insight into the merits of recoupment as compared to allowing the states to handle settlement funds for youth smoking. Additionally, these types of internal governmental deliberations are not available to Joint Defendants from other sources. Therefore, notwithstanding Plaintiff's concerns of future chill, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

26. PRA172-2630-2630 [CD 383]

"This document contains two emails: (a) November 21, 1997, Fred DuVal to Donald H. Gips, Toby Donenfeld, and Charles W. Burson, providing a report on upcoming hearings and meeting concerning recoupment, and seeking guidance on how to handle the issue at those hearings and meetings; and (b) November 24, 1997 from Mr. Gips to Mr. DuVal, with copies to Mr. Burson and Ms. Donenfeld, directing Mr. DuVal to Ms. Kagan for guidance on the issue." Rice Decl. at 51. Plaintiff asserts the deliberative process privilege.

This document is essentially a duplicate of Challenged Document 93. Therefore, consistent with the recommendation for Challenged Document 93, the Special Master recommends that the Court sustain the claim of privilege, notwithstanding Joint Defendants' claimed need, as the email is predecisional to an Administration decision on recoupment and deliberative in that Mr. Duval requests guidance on how to handle the issue.

27. PRA172-2989-2989 [CD 415]

"This document is an October 22, 1997 email from Emily Bromberg to Jeanne Lambrew concerning what she believes will be the position taken by a state at an upcoming tobacco meeting, including concerning recoupment." Rice Decl. at 51. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The email is informational, relaying what Ms. Bromberg believes will be the position taken by a state at an upcoming tobacco meeting, not deliberative in nature, "weighing the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866.

28. PRA172-3264-3264 [CD 433]

"This document contains two June 26, 1998 emails: (a) Bruce N. Reed to Nanda Chitre and Laura Emmett, with copies to Cynthia Dailard and Elena Kagan, providing guidance to be relayed to Michael McCurry about possible HHS plans to file suit for recoupment; and (b) Ms. Dailard to Cynthia A. Rice, forwarding (a)." Rice Decl. at 51. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to a decision by HHS on recoupment and deliberative in that it offers a suggestion by Mr. Reed: REDACTED REDACTED. PRA172-3264.

The Special Master does not believe that Joint Defendants have shown need for this document, as it does not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor does it reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Therefore, it is not sufficiently relevant to justify overcoming Plaintiff's privilege claim. Moreover, Joint Defendants do have access to any final statements made to the press on this issue.

29. PRA172-3878-3880 [CD 483]

"This document is a September 24, 1998 email from Cynthia A. Rice to Laura Emmett, with a copy to Cynthia Dailard, transmitting and discussing briefly a change she made to a draft weekly report to the President item concerning a meeting between senior White House staff and Florida Gov. Chiles concerning tobacco legislation and recoupment." Rice Decl. at 51. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Pages PRA172-3878-3879 only contain an unreadable hex dump and nondeliberative information. Page PRA172-3880, however, was authored and received by high-level presidential advisors who have responsibility for formulating advice to the President on tobacco issues and reflects a draft of information that was to be transmitted to the President. The document therefore is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document is directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

30. PRA172-3881-3886 [CD 484]

"This document consists of two September 21, 1998 emails: (a) from Mark E. Miller, Chief, Health Financing, Health/Personnel, OMB, to Daniel Mendelson, Associate Director, Health/Personnel, OMB, Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, and Victoria A. Wachino, a Senior Adviser in the Office of the Director at OMB, with copies to Anne E. Tumlinson, Program Examiner, Health/Personnel, OMB, Cynthia M. Smith, Program Examiner, Health/Personnel, OMB, William G. White, Program Examiner, Health/Personnel, OMB, and Caroline B. Davis, Program Examiner, Health/Personnel, OMB, transmitting an attachment containing a preliminary assessment of Gov. Chiles' proposal on tobacco and Medicaid recovery, in response to an e-mail (not part of this document) from Cynthia Rice, Special Assistant to the President for Domestic Policy, DPC, including a number of specific concerns that OMB staff have regarding the proposal and presenting OMB staff's overall view of the proposal; and (b) from Ms. Wachino to Ms. Rice with copies to Mr. Miller, Mr. Mendelson, Ms. Tumlinson, Mr. Clendenin, and Joshua Gotbaum, Executive Associate Director, OMB, forwarding (a)." Locke Decl. at 13. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Pages PRA172-3881-3884 only contain non-deliberative information and an unreadable hex dump. Pages 3885-3886, however, are predecisional to Administration policy on tobacco and Medicaid recovery and deliberative in that they reveal OMB concerns. Mr. Miller of OMB writes: REDACTED REDACTED. PRA172-3881.

The Special Master does not believe that Joint Defendants have shown need for the privileged portion, which relates primarily to budget issues impacted by recoupment, which Joint Defendants have argued are relevant to their now-dismissed affirmative equitable defenses, and as the privileged portion does not relate to any position taken by the government indicating that the MSA constituted a sufficient deterrent to youth smoking, nor does it reveal discussions of why the government waived the opportunity to recoup federal expenditures from the settlement. Therefore, the Special Master does not believe that the privileged portion is sufficiently relevant to Joint Defendants' claimed need to justify overcoming Plaintiff's privilege claim.

31. PRA172-3999-3999 [CD 495]

"This document is a December 15, 1998 email from Matthew W. Pitcher to Cynthia A. Rice and Emory L. Mayfield offering his proposed letter from the President to respond to a governor's letter to the President concerning recoupment." Rice Decl. at 52. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors who have responsibility for formulating advice to the President on issues such as tobacco recoupment in the form of a draft letter to be signed by the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document is directly relevant to issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

D. Executive Branch deliberations regarding options to combat underage smoking

Joint Defendants assert that "youth marketing allegations are clearly central to the Government's theory of the case, as well as its claims for relief." Mot. App. B at 5. They claim that documents addressing proposed legislation intended to reduce youth smoking, and addressing the adequacy of such legislation are relevant to the affirmative defenses in this matter. Id. at 6. They argue that "[a]lthough the Government has long been aware of the problem of youth smoking, it failed to adopt restrictions on sales of cigarettes to youth, failed to enforce the restrictions that did exist, and did not prohibit the sale of cigarettes to individuals under the age of 18 on federal property." Id. at 6. Joint Defendants therefore contend that documents claimed privileged that relate to the government's youth marketing arguments relate to their First Amendment defenses, as well as their affirmative equitable defenses. Id.

Joint Defendants further contend that documents addressing youth smoking prevalence and initiation and how Joint Defendants' conduct allegedly impacts or influences youth smoking are related to allegations that Joint Defendants' conduct caused youth to begin smoking. Id. at 8-9. Such discussions are relevant to whether the government can satisfy its fraud claim and to Plaintiff's disgorgement model. Id. at 9.

To the extent that these documents "contain discussions and communications assessing the impact cigarette price adjustments would have on youth consumption, including how such adjustments would impact Joint Defendants' profits and excise taxes," these documents "could very well contradict claims or assumptions made by the Government's experts in this litigation." Id. Moreover, to the extent that these documents reflect the potential impact that proposed legislation, penalties, taxes, and settlements would have on federal revenues, such discussions implicate Joint Defendants' affirmative equitable defenses. Id. at 10.

Finally, Joint Defendants assert their belief that their agreement to the MSA prevents the government from proving that a reasonable likelihood of future RICO violations will occur. Therefore, to the extent that the "documents reflect discussions and communications concerning the effectiveness of the MSA, programs funded by the MSA, and other programs (Federal and/or state) that are designed to reduce youth smoking" the discussions "go to the heart of whether the Government can meet its burden of demonstrating that there exists a reasonable likelihood of future misconduct." Id. at 11.

1. PRA171-2284-2285 [CD 34]

"This document is a June 7, 1999 email from Cynthia A. Rice to Joshua Gotbaum, transmitting a draft document entitled `Tobacco Options June 7, 1999 — DRAFT 4:30pm,' that offers several preliminary recommendations for reducing youth smoking and raising revenue for health-related programs. In her email, Ms. Rice notes what further work must be done before a formal Administration position can be taken and informs Mr. Gotbaum that she awaits further information from Treasury." Rice Decl. at 52-53. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of Administration policy on ways to reduce youth smoking and offers draft options for further review. Ms. Rice writes: REDACTED REDACTED. PRA171-2284.

The Special Master does not believe that Joint Defendants have shown need for this document as it contains discussions regarding the impact that certain payments and excise taxes would have on the federal budget. For example, the draft options paper notes that, REDACTED REDACTED and that REDACTED REDACTED. Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses. See Mot. App. B at 10. As these defenses are no longer part of this case, the Special Master does not believe that Joint Defendants have made a sufficient showing of relevancy to justify overcoming Plaintiff's privilege interest.

2. PRA171-2334-2335 [CD 36]

"This is a undated (but probably late 1998 or early 1999) draft document entitled `FY 2000 Tobacco Proposals' that proposes three approaches — industry penalty, company penalty, acceleration of excise tax increases — for raising revenue from youth smoking penalties and tobacco taxes, providing `preliminary' estimates of possible revenue from each proposal, and setting forth the policy rationale for implementing the proposals." Rice Decl. at 53. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of Administration policy on ways to raise revenue from youth smoking penalties and tobacco taxes and offers draft proposals for further review.

The Special Master further believes that Joint Defendants have not shown need for this document as it relates to revenue-raising issues: REDACTED REDACTED. As Joint Defendants have argued that such discussions are relevant to their affirmative equitable defenses, which have since been dismissed from this case, the Special Master does not believe that Joint Defendants' need outweighs Plaintiff's privilege interest.

3. PRA171-2666-2667 [CD 56]

"This document is an April 14, 1999 email from Cynthia A. Rice to Paul J. Weinstein, with a copy to J. Eric Gould, transmitting for review and comment a draft question and answer concerning tobacco regulation and youth smoking to be used by the President." Rice Decl. at 53. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA171-2666 only contains nonsubstantive transmittal information and an unreadable hex dump. Page PRA171-2667, however, was authored and received by high-level presidential advisors who have responsibility for formulating advice to the President, in the form of a draft statement to be issued by the President himself, on tobacco regulation and youth smoking. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document contains evidence directly relevant to a central issue in this case, or that similar information is not available from other sources with due diligence.

4. PRA171-3152-3152 [CD 78]

"This document consists of three April 13, 1999 emails: (a) Bruce N. Reed to Patricia M. Ewing, with a copy to Jennifer M. Palmieri, advising how to address a report concerning connections between advertising and youth smoking, with a suggestion that certain language not be used to describe the effort and that emphasis be placed on the Marlboro ad campaign; (b) Ms. Ewing to Christopher S. Lehane and Sarah A. Bianchi, with a copy to Melissa B. Ratcliff, forwarding (a) and adding her concurrence with Mr. Reed's suggestion; and (c) from Mr. Lehane to Alejandro G. Cabrera, forwarding (a) and (b)." Rice Decl. at 53. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of an Administration decision on how to address connections between advertising and youth smoking and offers suggestions regarding the response: REDACTED REDACTED. PRA171-3152.

Joint Defendants have argued that communications pertaining to advertising and youth marketing are relevant to their First Amendment defenses. See Mot. App. B at 6. The Special Master agrees that youth marketing issues are relevant to this case,¹⁸ and while it contains Mr. Reed's personal opinion, it appears that his advice may have been used in dealing with the public, as Ms. Ewing requests that the other employees REDACTED REDACTED. Therefore, there is little danger of future chill, and these discussions are not available to Joint Defendants from other sources. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

18 See Mem. Op. Order #501 at 2-4 (discussing the government's youth marketing allegations in denying Defendants' Motion for Partial Summary Judgment on Claims That Defendants Advertised, Marketed and Promoted Cigarettes to Youth and Fraudulently Denied Such Conduct); see also id. at 5-6 ("whether Defendants have targeted children as replacement smokers and whether they have falsely denied doing so, involve disputed factual issues of intent that must be resolved at trial.").

5. PRA171-4023-4024 [CD 94]

"This document is a January 29, 1998 email from Thomas L. Freedman to Elena Kagan, with copies to Mary L. Smith and Laura Emmett, transmitting and discussing briefly a draft weekly report to the President concerning `RJR Documents and State Prohibitions Against Sales to Children' and providing his interpretation of the assessment contained therein regarding the youth marketing data and its implications and suggesting a possible further inclusion in the report." Rice Decl. at 54. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored in response to a request from the President: REDACTED REDACTED. PRA171-4024 The document therefore is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document contains evidence directly relevant to a central issue at trial, or that similar information is not available from other sources with due diligence.

6. PRA172-0205-0207 [CD 154]

"This document is a September 3, 1999 email from Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, to Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, with a copy to Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, transmitting an updated draft paper entitled `Providing On-Going Incentives to Reduce Underage Smoking' that presents a proposal and supporting analysis related to reducing youth smoking. Mr. Seidl requests that Ms. Rice review and comment on the draft paper prior to further distribution to staff at HHS and Treasury for their review and comment and suggests an issue that need not be incorporated into the proposal and draft paper." Locke Decl. at 14. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Although Ms. Rice, a high-level advisor within the EOP, received the document, Plaintiff has not shown that these discussions involve a policy that calls for direct decisionmaking by the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). As the communications involve "dual hat" advisors, Plaintiff "bears the burden of proving that the communications occurred in conjunction with the process of advising the President." Id. Plaintiff has not done so. The document does, however, qualify for the deliberative process privilege.

The Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege interest. Here, the document contains analysis regarding the number of underage smokers, smoking initiation by youth, and defining the youth smoking population. Such discussions are relevant to assumptions made by Plaintiff's experts in this case and to the government's disgorgement model. See Mot. App. B at 8-10. Moreover, similar discussions are not available from other sources, and the Special Master does not believe that the discussions in this document are so candid and personal in nature that future governmental deliberations would be threatened by its release. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

7. PRA172-0208-0210 [CD 155]

"This document is a September 10, 1999 email from Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, to Daniel N. Mendelson, Associate Director, Health/Personnel, OMB, Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, and Joshua Gotbaum, Executive Associate Director, OMB, with copies to Patrick G. Locke, Policy Analyst, Budget Review, OMB, Melany Nakagiri, Program Examiner, Health/Personnel, OMB, Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, Wendy A. Taylor, Policy Analyst, OIRA, OMB, Andrew J. Scott, Program Examiner, Health/Personnel, OMB, Jennifer M. Forshey, Program Examiner, Health/Personnel, OMB, and Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, transmitting an updated draft of the youth smoking proposal described in Challenged Document #154." Locke Decl. at 14. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the privilege claims for page PRA172-0208, which contains a non-deliberative email and a hex dump, and overrule the claim of presidential communications privilege for the same reasons given for Challenged Document 154. Also consistent with the recommendation for Challenged Document 154, the Special Master believes that Challenged Document 155 qualifies for the deliberative process privilege, but that Joint Defendants' need outweighs Plaintiff's privilege interest.

8. PRA172-0249-0252 [CD 156]

"This document is a September 4, 1999 email from Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, to Daniel N. Mendelson, Associate Director, Health/Personnel, OMB, and Joshua Gotbaum, Executive Associate Director, OMB, with copies to Patrick G. Locke, Policy Analyst, Budget Review, OMB, Melany Nakagiri, Program Examiner, Health/Personnel, OMB, Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, Wendy A. Taylor, Policy Analyst, OIRA, OMB, J. Eric Gould, Associate Director for Domestic Policy, DPC, Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, Jennifer M. Forshey, Program Examiner, Health/Personnel, OMB, and Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, transmitting an updated draft of the youth smoking proposal described in Challenged Document #154 incorporating comments from HHS and Treasury and explaining some of the incorporated edits." Locke Decl. at 14. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege for the same reasons given for Challenged Document 154. Also consistent with the recommendation for Challenged Document 154, the Special Master believes that Challenged Document 155 qualifies for the deliberative process privilege, but that Joint Defendants' need outweighs Plaintiff's privilege interest.

9. PRA172-0253-0256 [CD 157]

"This document consists of three emails: (a) July 29, 1999, from Joshua Gotbaum, Executive Associate Director, OMB, to Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, with copies to a large group of OMB personnel, transmitting and discussing briefly an attached draft proposal entitled `Possible Youth Smoking Assessment on Tobacco Manufacturers' that discusses proposed legislation assessing tobacco companies based on the number of underage smokers; (b) July 30, 1999, from Ms. Rice to Mr. Gotbaum and the other addressees in (a), comparing Treasury estimates concerning profits from youth smoking to information released publicly on the McCain bill's surcharges; and (c) July 30, 1999, from Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, to Ms. Rice, with copies to the same group, providing an explanation for how estimates in the draft proposal were calculated." Locke Decl. at 15. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0255 only contains non-substantive transmittal information and a hex dump. The rest of the document, however, is predecisional and deliberative because it was generated before the adoption of Administration policy on a youth smoking assessment on tobacco manufacturers and reflects the give-and-take of the consultative process. Page PRA172-0256 is a draft proposal and pages PRA172-0253-0254 contain discussion by agency employees regarding that proposal.

The Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest. The discussions address methods to calculate youth smokers and profits per youth smoker, as well as penalties assessed per that methodology. Joint Defendants have argued that such discussions are relevant to assumptions made by Plaintiff's experts in this case. The Special Master agrees, and notes that similar discussions are not available to Joint Defendants from other sources, and that, on balance, Joint Defendants' need outweighs Plaintiff's concerns that release of this document could have a chilling effect on future government deliberations. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

10. PRA172-0331-0332 [CD 165]

"This document is a March 29, 1999 email from J. Eric Gould to Laura Emmett, with a copy to Cynthia A. Rice, transmitting for further review and comment draft press guidance concerning the Administration's position on the Philip Morris' counter-advertising campaign aimed at reducing youth smoking." Rice Decl. at 54. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0331 only contains non-substantive transmittal information and a hex dump. Page PRA172-0332, however, is both predecisional and deliberative because it is a draft and thus reveals a proposal for further review.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Hence, according to Joint Defendants, "[t]o the extent these documents reveal such discussions or analyses concerning tobacco advertising these documents are relevant to the claims and defenses in this litigation, including `laches,' `waiver,' `estoppel,' `unclean hands,' ` in pari delicto,' and First Amendment defenses." Id. at 22.

The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto in Order # 476. See Report and Recommendation #154 (adopted by Order #541). With respect to the First Amendment defenses, the Special Master notes that this document addresses counter-advertising, which does not implicate the issues Joint Defendants assert are relevant. Moreover, the document is draft press guidance; therefore, Joint Defendants have access to similar information form other sources.

11. PRA172-0406-0409 [CD 171]

"This document is a January 5, 1999 email from Cynthia A. Rice to J. Eric Gould transmitting, and requesting review of and comment on, a draft statement entitled `President Clinton Continues the Fight Against Youth Smoking' that sets forth proposals concerning recovering the costs of tobacco-related medical care, combating underage smoking, and protecting tobacco farmers and their communities." Rice Decl. at 54. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level presidential advisors within the EOP who have responsibility for formulating advice to the President on tobacco issues; the document is a draft of an Administration youth smoking plan, and therefore calls for direct decisionmaking by the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have established need to overcome the presidential communications privilege.¹⁹

19 Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. As these defenses are no longer part of this case, the Special Master does not believe that Joint Defendants could shown that this information is directly relevant to a central issue in this case to justify overcoming Plaintiff's privilege interest.

12. PRA172-0418-0420 [CD 174]

"This document is a January 12, 1999 email from Cynthia A. Rice to Victoria A. Wachino, Dawn V. Woollen, and Joshua Gotbaum, with copies to Elena Kagan, J. Eric Gould, Linda Ricci, Laura Emmett, and Bruce N. Reed, transmitting draft edited tobacco Budget language concerning upcoming Administration proposals to reduce youth smoking and providing assistance to tobacco farmers." Rice Decl. at 54-55. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-0418 only contains non-substantive transmittal information and a hex dump. Pages PRA172-0419-0420, however, are predecisional and deliberative because they were generated before the adoption of an Administration decision on tobacco Budget language and reveal the edits and suggestions of the DPC.

Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. Because these defenses are no longer part of this case, the Special Master does not believe that Joint Defendants have established relevancy of the material sufficient to overcome Plaintiff's privilege interest.

13. PRA172-0484-0486 [CD 189]

"This document is a September 2, 1999 email from Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, to Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, with a copy to Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, transmitting, and seeking review of and comment on, a revised version of an internal working paper entitled `Providing On-Going Incentives to Reduce Underage Smoking' that presents an underage smoking penalty proposal discussed subsequently in Challenged Document #154." Locke Decl. at 15. Plaintiff asserts the deliberative process privilege.

Consistent with the recommendations for Challenged Documents 154 and 155, the Special Master believes that Challenged Document 189 qualifies for the privilege, but that Joint Defendants' need outweighs Plaintiff's privilege interest, and therefore recommends that the Court order Plaintiff to produce Challenged Document 189 to Joint Defendants.

14. PRA172-0498-0503 [CD 191]

"This document is a September 8, 1999 email from Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, to J. Eric Gould, Associate Director for Domestic Policy, DPC, Phil Ellis, Office of Economic Policy, Treasury, Lester Cash, Chief, Science and Regulatory Affairs, Office of the Assistant Secretary for Management and Budget (ASMB), HHS, Gary Claxton, ASMB, HHS, Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, Bob Cumby, Office of Economic Policy, Treasury, Christine Schmidt, HHS, and Ripley Forbes, Office of the Secretary, HHS, transmitting, and requesting review of and comment on, a later revision of the internal working paper described in Challenged Document #189 and a draft of legislative language to effect the proposal." Locke Decl. at 16. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. Like Challenged Document 189, the document is predecisional and deliberative because it was generated before the adoption of an Administration decision on incentives to reduce underage smoking and reveals a proposal and appropriations language for further review. Mr. Seidl writes: REDACTED REDACTED. PRA172-0498. Also consistent with the recommendation for Challenged Document 189 (as well as that for Challenged Documents 154 and 155), the Special Master believes that Joint Defendants' need for this document outweighs Plaintiff's privilege claim, and recommends that the Court order Plaintiff to produce this document to Joint Defendants.

15. PRA172-0532-0534 [CD 196]

"This document is an email dated October 25, 1999 from Richard J. Turman, Chief, Health Programs and Services, Health/Personnel, OMB, to Frank J. Seidl, III, Program Examiner, Health/Personnel, OMB, Rosalyn J. Rettman, Associate General Counsel for Budget, OGC, OMB, Daniel N. Mendelson, Associate Director, Health/Personnel, OMB, Victoria A. Wachino, a Senior Adviser in the Office of the Director at OMB, J. Eric Gould, Associate Director for Domestic Policy, DPC, Patrick Locke, Policy Analyst, Budget Review, OMB, Robert G. Damus, General Counsel, OMB, Joshua Gotbaum, Executive Associate Director, OMB, and Cynthia A. Rice, Special Assistant to the President for Domestic Policy, DPC, with a copy to Barry T. Clendenin, Deputy Associate Director, Health/Personnel, OMB, transmitting a draft proposal for a tobacco company underage smoking penalty and draft legislative language to effect that proposal, and stating that these materials are being sent to HHS and the Department of Justice." Locke Decl. at 16. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of an Administration decision on a tobacco company underage smoking penalty and includes a draft proposal for review. This proposal is similar in nature to that discussed in other Challenged Documents in this section, such as Challenged Documents 154, 155, and 189. Consistent with the recommendations for those Challenged Documents, the Special Master recommends that the Court order Plaintiff to produce Challenged Document 196 to Joint Defendants, as it contains communications relevant to the issues in this case, which are unlikely to be available to Joint Defendants from other sources, and which are not so candid or personal in nature that there is a significant danger of future chill of internal agency deliberations.

16. PRA172-0611-0614 [CD 204]

"This document is a duplicate of Challenged Document #156." Locke Decl. at 16. Plaintiff asserts the deliberative process privilege. Consistent with the recommendation for Challenged Document 156 (and Challenged Document 154), the Special Master believes that this document qualifies for the privilege, but that Joint Defendants' need for this document outweighs Plaintiff's privilege interest.

17. PRA172-0615-0616 [CD 205]

"This document consists of two October 29, 1999 emails: (a) Eugenia Chough to Bruce N. Reed and Eric P. Liu transmitting a draft statement to be issued in support of the Administration's proposal for a lookback surcharge to combat underage smoking, including discussing changes that have been made to an earlier draft; and (b) Eric P. Liu to Ms.Chough, with copies to Anna Richter and Mr. Reed, providing his further edits to the draft statement." Rice Decl. at 55. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of Administration policy on a lookback surcharge and includes a draft statement for review. Ms. Chough writes: REDACTED REDACTED. PRA172-0615. This document is a partial duplicate of Challenged Document 196; consistent with that recommendation, the Special Master recommends that the Court order Plaintiff to produce Challenged Document 205 to Joint Defendants as it contains communications relevant to the issues in this case, which are unlikely to be available to Joint Defendants from other sources, and which are not so candid or personal in nature that there is a significant danger of future chill of internal agency deliberations.

18. PRA172-0994-0994 [CD 271]

"This document is a June 28, 2000 exchange of emails between Ann E. Bushmiller, Associate Counsel to the President, WHO, and Brooke B. Livingston, Legislative Analyst, Legislative Affairs, OMB: (a) from Ms. Bushmiller to Ms. Livingston commenting on a section in the draft Statement of Administration Position on the FY 2001 Agricultural appropriations bill; and (b) from Ms. Livingston to Ms. Bushmiller, responding to (a) and offering a change in the tobacco section text for Ms. Bushmiller's review and comment." Gonzales Decl. Ex. A at 31; Locke Decl. at 21. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The earlier email was authored and the later received by a high-level presidential advisor — the President's counsel — with responsibility for formulating advice to the President on the Statement of Administration Position, which was to be issued by the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial²⁰ or that similar information is not available from other sources with due diligence.

20 Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. These defenses have since been dismissed from this case.

19. PRA172-1019-1025 [CD 272]

"The withheld portion of this document (pages 1019-1022) contains five May 17, 2000 emails: (a) from J. Eric Gould, Associate Director for Domestic Policy, DPC, to a group of OMB and White House personnel transmitting and requesting review of a draft tobacco statement by the President and related press guidance concerning the need for congressional action to protect children from the dangers of tobacco, and explaining why the statement is being issued; (b) from Victoria A. Wachino, a Senior Adviser in the Office of the Director at OMB, to Douglas Pitkin, Program Examiner, Justice Branch, Transportation, Commerce, Justice, and Services Division, General Government Programs, OMB, and David J. Haun, Chief, Justice Branch, Transportation, Commerce, Justice, and Services Division, General Government Programs, OMB forwarding (a); (c) from Mr. Haun to John E. Thompson, Program Examiner, Justice Branch, Transportation, Commerce, Justice, and Services Division, General Government Programs, OMB, forwarding (a) and (b); (d) from Mr. Thompson to Ms. Wachino, with copies to an undisclosed group of recipients, suggesting a change in the wording of the press guidance and explaining why; (e) from Ms. Wachino to Mr. Gould, with a copy to John E. Hale, Policy Analyst, Office of National Drug Control Policy, NSC, forwarding (a)-(d)." Locke Decl. at 17. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for the withheld pages, which contain emails and a draft presidential statement authored and received by high-level presidential advisors who have responsibility for formulating the draft tobacco statement to be issued by the President and related press guidance. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial²¹ or that similar information is not available from other sources with due diligence.

21 Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Hence, according to Joint Defendants, "[t]o the extent these documents reveal such discussions or analyses concerning tobacco advertising these documents are relevant to the claims and defenses in this litigation, including `laches,' `waiver,' `estoppel,' `unclean hands,' ` in pari delicto,' and First Amendment defenses." Id. at 22. The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto in Order # 476. See Report and Recommendation #154 (adopted by Order #541).

20. PRA172-1069-1069 [CD 280]

"This document contains two August 24, 2000 emails: (a) Christina S. Ho to Andrea Kane, summarizing the information provided by the MMWR released that day and providing her opinion as to whether it shows there is progress concerning tobacco use by youth; and (b) Ms. Kane to Ms. Ho, responding to (a), including providing her opinion as to whether there should be any statements concerning that MMWR." Rice Decl. at 55. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Plaintiff "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." Coastal States Gas, 617 F.2d at 868. A document is part of the deliberative process when "the disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." Dudman Communications Corp. v. Department of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987). Plaintiff has not satisfied its burden in establishing the deliberative process involved and there is no indication that disclosure would expose the agency's decisionmaking process; rather, it appears to be factual and informative in nature.

21. PRA172-1075-1077 [CD 282]

"This document contains three emails: (a) Christina S. Ho to Andrea Kane, summarizing the information provided by the MMWR released that day and providing her opinion as to whether it shows there is progress concerning tobacco use by youth; (b) August 29, 2000, Ms. Ho to Julie T. Bosland, presenting her suggestion as to beginning to collect information on tobacco (included in this document); and (c) August 29, 2000, Ms. Bosland to Ms. Ho, responding to (b)." Rice Decl. at 55. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The first email from Ms. Ho to Ms. Kane is the same as one of the emails included in Challenged Document 280. Like Challenged Document 280, Plaintiff has not satisfied its burden of establishing the deliberative process involved and there is no indication that disclosure would expose the agency's decisionmaking process. Ms. Ho merely relays the findings of that day's CDC MMRW and comments: REDACTED REDACTED. PRA172-1075. In the email to Ms. Bosland, Ms. Ho REDACTED REDACTED. Plaintiff does not show the role this otherwise factual document plays in the course of a deliberative process of the agency.

22. PRA172-1096-1097 [CD 285]

"This document is an August 30, 2000 email from Bill Hall to a group of White House and HHS personnel forwarding, for review and approval, draft press guidance, including background information, about the recently-released results from a survey showing a decline in the number of new underage smokers." Rice Decl. at 56. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because, as a draft, it was generated before the final adoption and relays suggested press guidance for review. The Special Master does believe that Joint Defendants' need for this information outweighs Plaintiff's privilege claim. Here, the document addresses questions as to the most accurate estimates of youth smokers; such information is directly relevant to estimates made by Plaintiff's experts in this litigation, and to the figures used in the government's disgorgement model. See Mot. App. B at 8-9. The information contained here is not likely available from other sources, and the Special Master does not believe that release of this information, which does not identify a specific author, is likely to create a chilling effect on future government deliberations. Accordingly, the Special Master recommends that the Court order Plaintiff to produce this document to Joint Defendants.

23. PRA172-1186-1186 [CD 292]

"This document is an August 30, 2000 email from Christina S. Ho to Bill Hall, thanking him for draft press guidance on underage smokers and asking for his assistance as to how to phrase some of the language in the press guidance." Rice Decl. at 56. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated prior to adoption of the press guidance and relays questions from Ms. Ho: REDACTED REDACTED. Similar to Challenged Document 285, however, the Special Master believes that Joint Defendants' need for this information outweighs Plaintiff's privilege interest as it discusses a relevant topic, the discussions are not available to Joint Defendants from other sources, and disclosure of this email is not likely to chill future agency discussions. The Special Master therefore recommends that the Court order Plaintiff to produce this document to Joint Defendants.

24. PRA172-1331-1332 [CD 297]

"This document is an August 9, 2000 email from Anna Richter to Adam L. Rosman and Elliot J. Diringer, with a copy to Alexander N. Gertsen, transmitting for review and approval a draft statement by the President on `Reducing Tobacco Use: A Report of the Surgeon General,' relating to the release of a report examining comprehensive approaches to reducing tobacco use and calling on Congress to take steps to protect children from the dangers of tobacco." Rice Decl. at 56. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues, and the document at issue is a statement to be issued by the President. Ms. Richter writes: REDACTED REDACTED. PRA172-1331. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial²² or that similar information is not available from other sources with due diligence.

22 Joint Defendants contend that documents relating to the Surgeon General "likely contain discussions or analyses regarding youth smoking; smoking cessation; addiction; and, the causes or reasons why people smoke." Mot. App. B at 24. Hence, according to Joint Defendants, "these documents are directly relevant to the Government's RICO allegations and Joint Defendants' affirmative defenses, such as `unclean hands,' `in pari delicto,' `laches' and `equitable estoppel.'" Id. at 24-25. These defenses are not central to any issue in this case as they have since been dismissed.

25. PRA172-1544-1544 [CD 302]

"This document is an August 31, 2000 email from Christina S. Ho to Leanne A. Shimabukuro and Deanne E. Benos providing language to be included in the weekly report to the President about what the National Household Survey shows concerning youth smoking rates." Rice Decl. at 56. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues, and the document reflects a draft of a memorandum to be issued directly to the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence.

26. PRA172-1694-1694 [CD 314]

"This document is a February 27, 1997 email from Eli G. Attie to James T. Edmonds, suggesting an edit for Presidential remarks concerning children and tobacco." Rice Decl. at 57. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues, and this email contains information proposed to be used in remarks to be made by the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence.

27. PRA172-1710-1710 [CD 316]

"This document is a September 3, 1996 email from David Fein to Ronald E. Jones suggesting a change in tobacco language concerning tobacco advertising and children in a proposed statement about tobacco." Rice Decl. at 57. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of the statement on tobacco advertising and reveals a suggested change in the language by EOP counsel.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Hence, according to Joint Defendants, "[t]o the extent these documents reveal such discussions or analyses concerning tobacco advertising these documents are relevant to the claims and defenses in this litigation, including `laches,' `waiver,' `estoppel,' `unclean hands,' ` in pari delicto,' and First Amendment defenses." Id. at 22.

The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto in Order # 476, see Report and Recommendation #154 (adopted by Order #541), and because the email contains a suggested change in language, which is not sufficiently relevant to the First Amendment claims to justify overcoming Plaintiff's privilege interest.

28. PRA172-1711-1711 [CD 317]

"This document is a September 4, 1996 email from Carol H. Rasco to Nancy V. Hernreich and Todd Stern discussing handling a memorandum from Joseph Califano for the President and following through on a commitment made by the President to Mr. Califano following a Presidential tobacco announcement." Rice Decl. at 57. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Plaintiff "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." Coastal States Gas, 617 F.2d at 868. Plaintiff has not done so here and in camera review only indicates that REDACTED REDACTED. PRA172-1711.

29. PRA172-1780-1781 [CD 325]

"This document is a February 26, 1997 email from Julia R. Green to a large group of White House personnel providing an update on, and soliciting guidance with respect to preparing for, an upcoming tobacco-related event at the White House." Rice Decl. at 57. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The privilege has the following 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, 617 F.2d at 866. The purposes of the privilege are not served by withholding this document. The email largely discusses logistical considerations in connection with a tobacco-related event as well as other non-substantive information.

30. PRA172-1786-1786 [CD 327]

"This document is an April 29, 1996 email from Bruce N. Reed to Elizabeth E. Drye providing his assessment of the level of interest by Senior White House officials in a proposed school smoking initiative." Rice Decl. at 58. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Plaintiff "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." Coastal States Gas, 617 F.2d at 868. Plaintiff has not done so here. Moreover, it appears that Mr. Reed is relaying a decision already made by the Administration: REDACTED REDACTED. PRA172-1786.

31. PRA172-1872-1872 [CD 336]

"This document is a May 29, 1998 email from Russell W. Horwitz to Mark H. Bartholomew proposing changes to be made to a paper listing Clinton Administration accomplishments concerning children and families, including with respect to tobacco products. (Most of the text is not responsive.)." Rice Decl. at 58. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The email concerns a paper listing Clinton Administration accomplishments; thus, the communication is not predecisional to the formulation of Administration policy and should not be protected by the privilege.

32. PRA172-1896-1905 [CD 337]

"This document is an August 15, 1996 email from Vivian Grishkot to a large group of White House personnel forwarding the August 15, 1996 report from HHS to the President, including a discussion of the status of the proposed FDA tobacco rule and a status report on Texas' adoption of several anti-smoking proposals. (Most of the document is not responsive.)" Rice Decl. at 58. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA172-1896 only contains nonsubstantive transmittal information and does not qualify for the privileges asserted. Pages PRA172-1897-1905, however, contain a report from HHS to the President to assist him in the performance of his responsibilities and to advise on issues such as tobacco. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial, especially because the document largely contains non-responsive information, or that similar information is not available from other sources with due diligence.

33. PRA172-1951-1956 [CD 338]

"This document is a May 16, 1996 email from Vivian Grishkot to a large group of White House personnel forwarding the May 16, 1996 report from HHS to the President, including discussion of a to-be-released MMWR on high school smoking rates and restricting teens' access to cigarettes. (Most of the document is not responsive.)" Rice Decl. at 58. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA172-1951 only contains nonsubstantive transmittal information and is therefore not protected. Pages PRA172-1952-1956, however, contain a report from Secretary Shalala and the Chief of Staff, both high-level level presidential advisors, to the President to assist him in the performance of his responsibilities and to advise on issues such as tobacco. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial, especially because the document largely contains non-responsive information, or that similar information is not available from other sources with due diligence.

34. PRA172-2072-2073 [CD 339]

"This document is a February 27, 1997 email from Julia R. Green to a large group of White House personnel forwarding the text of a statement from the White House office of Media Affairs regarding an upcoming Presidential event." Rice Decl. at 59. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications and deliberative process privileges. Neither privilege is applicable because the document was forwarded to the recipients for informational purposes and contains only non-substantive information. The document was not authored or received by high-level presidential advisors for the purpose of formulating advice to the President on policy, nor recommendatory and deliberative in nature, "weighing the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866.

35. PRA172-2083-2084 [CD 341]

"This document is an August 22, 1996 email from Elizabeth E. Drye to Jennifer M. O'Connor and Michelle Crisci forwarding draft press guidance concerning the relationship between underage smoking and illicit drug use for review by Rahm Emanuel and describing planned comments by the Director of the ONDCP." Rice Decl. at 59. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of the press guidance and deliberative in that it is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and Ms. Drye requests further review. The Special Master does not believe that Joint Defendants have shown need as they have not demonstrated the relevancy of discussions regarding the relationship of smoking to drug use to this case.

36. PRA172-2085-2086 [CD 342]

"This document is an August 23, 1996 email from Kathy McKiernan to Shana E. Tesler forwarding a press statement entitled `President Clinton Announces New Rule on Restricting Youth Access to Tobacco and Appeal of Tobacco to Children' for review and comment and providing background information about the Presidential event accompanying the announcement." Rice Decl. at 59. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors — the WHO Assistant Press Secretary and Staff Assistant to the Chief of Staff — who have responsibility for formulating advice to the President on tobacco issues and drafting press statements. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, especially as the press guidance in final form would be public.

37. PRA172-2089-2090 [CD 343]

"This document is an August 26, 1996 email from Elizabeth Berman to Paul J. Weinstein, Jr., forwarding a draft Presidential statement concerning protecting children from tobacco (and other non-responsive matters)." Rice Decl. at 59. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of the Presidential statement and deliberative in that it is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866. Additionally, the document was subject to further review: REDACTED REDACTED. PRA172-2089.

The Special Master does not believe that Joint Defendants have shown need for this document. While the issue of youth tobacco use is relevant, the draft statement here addresses presidential initiatives concerning issues other than tobacco. Moreover, Joint Defendants have access to any final statements on presidential initiatives, as well as the initiatives themselves. Accordingly, Joint Defendants' need does not outweigh Plaintiff's privilege interest in this draft document.

38. PRA172-2255-2256 [CD 353]

"This document is a December 19, 1996 email from Kathy McKiernan to Dennis Burke forwarding a draft statement and draft press guidance on the upcoming release of the annual `Monitoring the Future' survey, with a brief mention of underage smoking." Rice Decl. at 60. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional because it was generated before the adoption of the Presidential statement, and deliberative in that it is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and Ms. McKiernan requests further review. The Special Master does not believe that Joint Defendants' need outweighs Plaintiff's privilege interest, as they have access to the "Monitoring the Future" survey, as well as any final statements made by the Administration regarding the survey.

39. PRA172-2271-2272 [CD 355]

"This document is an August 28, 1996 email from Russell W. Horwitz to Daniel P. Collins forwarding a briefing paper for the President on important local issues, including a proposed plan in one state to stop tobacco sales to children. (Most of the document is non-responsive.)." Rice Decl. at 60. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial, especially because the document is largely non-responsive.

40. PRA172-2283-2290 [CD 356]

"This is a July 17, 1996 email from Russell W. Horwitz to Elizabeth Berman and Nicole R. Crisci forwarding a briefing for the President on important issues in several states, including a discussion of the President's initiative to combat tobacco sales to children — enforcement of the Synar Amendment regulation and a tobacco company proposal to support federal legislation to reduce tobacco use. The briefing paper also reports on another state's proposed increase in cigarette taxes and the use of revenues therefrom. (Most of the document is non-responsive.)." Rice Decl. at 60. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial,²³ especially because the document is largely non-responsive.

23 Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23.

41. PRA172-2322-2322 [CD 359]

"This document is a May 22, 1996 email from Jennifer M. O'Connor to Seth E. Masket, with copies to Barbara D. Woolley, Shana E. Tesler, and an unknown recipient, suggesting a change in focus in a paragraph in a draft statement on smoking, including the reasons for that suggestion." Rice Decl. at 61. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated before the adoption of the draft statement and suggests a change to the REDACTED REDACTED. PRA172-2322.

The Special Master does not believe that Joint Defendants' need for this email outweighs Plaintiff's privilege claim, as it contains Ms. O'Connor's candid suggestions proposing a change to a paragraph in a policy statement. Joint Defendants have access to any final policy statements, and have not shown sufficient need for, or the relevance of, a policy suggestion of a change in language.

42. PRA172-2323-2323 [CD 360]

"This document is an April 16, 1996 email from Bruce N. Reed to Elizabeth Drye, forwarding an email of the same date from Mr. Reed to Jeremy D. Benami, with copies to Carol H. Rasco, Janet B. Abrams, and Gaynor R. McCown, presenting his suggestion for a possible proposal by the President on youth smoking." Rice Decl. at 61. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues. Mr. Reed suggests that the President REDACTED REDACTED. PRA172-2323. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

43. PRA172-2756-2770 [CD 397]

"This document is a March 27, 1998 email from Jason S. Goldberg to Jeanne Lambrew, Melissa G. Green, Jonathan Orszag, and Charles R. Marr attaching a draft of talking points for Chief of Staff Erskine Bowles' upcoming tobacco speech and noting that substantial changes will be needed to respond to the proposed McCain legislation." Rice Decl. at 61. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Communications involving high-level Presidential advisors made for the purpose of soliciting and receiving information to formulate advice for the President are presumptively privileged. Here, the communications relate to draft talking points for the Chief of Staff, not the President, and Plaintiff does not indicate that the document ultimately calls for direct decisionmaking by the President. In re Sealed Case, 121 F.3d at 752.

The Special Master recommends that the Court sustain the claim of deliberative process privilege, however, as the document is a draft of talking points that reflects the proposals and suggestions of the authors, not yet the position of the Administration. Further, Joint Defendants have not demonstrated need for this document as the talking points are not sufficiently relevant to their claims of need and Joint Defendants would have access to the actual speech given by Mr. Bowles.

44. PRA172-2844-2846 [CD 408]

"This document is a September 16, 1997 email from Neera Tanden to Ann F. Lewis, with a copy to Ruby Shamir, forwarding a draft statement (accomplishments sheet) for the press concerning `President Clinton — Fighting Tobacco Use,' requesting review and edits." Rice Decl. at 61. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of privilege for pages PRA172-2844-2845 as they only contain non-substantive information already revealed in the declaration of Ms. Rice and a hex dump. The Special Master further recommends that the Court overrule the claim of presidential communications privilege for page PRA172-2846 as there is no indication from Plaintiff that discussions related to the draft accomplishments sheet calls for direct decisionmaking by the President. See In re Sealed Case, 121 F.3d at 752 ("The presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President."). However, page PRA172-2846 should be protected by the deliberative process privilege as it is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and Joint Defendants' have not demonstrated a sufficient need for this document as it is not relevant to their claims of need and the information is available from other sources.

45. PRA172-3123-3140 [CD 425]

"This document contains two March 30, 1998 emails transmitting a draft of Chief of Staff Erskine Bowles' upcoming tobacco speech: (a) Jason S. Goldberg to a large group of White House and OMB personnel; and (b) Laura Emmett to Victor Zonana." Rice Decl. at 61. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of privilege for pages PRA172-3123-3124 as they only contain non-substantive information already revealed in the declaration of Ms. Rice and a hex dump. The remainder of the document is similar to Challenged Document 397 as the communications relate to draft talking points for the Chief of Staff, not the President, and Plaintiff does not indicate that the document ultimately calls for direct decisionmaking by the President. In re Sealed Case, 121 F.3d at 752. Consistent with that recommendation, the Special Master recommends that the Court overrule the claim of presidential communications privilege and sustain the claim of deliberative process privilege for pages PRA172-3125-3140, notwithstanding Joint Defendants' claims of need.

46. PRA172-3202-3204 [CD 429]

"This document is a February 23, 1998 email from Mary L. Smith to Thomas L. Freedman and Cynthia A. Rice transmitting and discussing briefly her draft of questions for press guidance concerning a possible event on youth smoking and advertising." Rice Decl. at 62. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Page PRA172-3203 only contains a hex dump. Pages PRA172-3202 and 3204 are predecisional and deliberative because the press guidance is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and the email reflects Ms. Smith's requests further review: REDACTED REDACTED. PRA172-3202.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Hence, according to Joint Defendants, "[t]o the extent these documents reveal such discussions or analyses concerning tobacco advertising these documents are relevant to the claims and defenses in this litigation, including `laches,' `waiver,' `estoppel,' `unclean hands,' ` in pari delicto,' and First Amendment defenses." Id. at 22. The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto in Order # 476. See Report and Recommendation #154 (adopted by Order #541). Moreover, the communications here address anti-tobacco advertising, which does not implicate Joint Defendants' First Amendment defense.

47. PRA172-3224-3224 [CD 430]

"This document is a January 27, 1998 email from Bruce N. Reed to Thomas L. Freedman with instructions about discussing tobacco proposals that were presented in the State of the Union address." Rice Decl. at 62. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. Although the email involves two EOP advisors, Plaintiff does not show that the communication was made for the purpose of formulating advice to the President. The email relates to tobacco proposals already presented by the President in the State of the Union address and there is no indication that the subsequent instructions call for direct decisionmaking by the President. See In re Sealed Case, 121 F.3d at 752. Further, the Special Master does not believe that the deliberative process privilege applies because the email does not appear to be predecisional to the generation of Administration policy.

48. PRA172-3282-3282 [CD 436]

"This document is a June 18, 1998 email from Jerold R. Mande to Bruce N. Reed providing his suggestions for the Administration's message concerning its goal to cut youth smoking by 50% in seven years." Rice Decl. at 62. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was authored and received by high-level presidential advisors within EOP who have responsibility for formulating advice to the President on tobacco issues. Mr. Mande makes suggestions for the Administration's message, including: REDACTED REDACTED. PRA172-3282. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains information directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence.

49. PRA172-3796-3797 [CD 471]

"This document is a May 14, 1998 email from Bruce N. Reed to Jonathan Gruber requesting that Mr. Gruber review a statement given by Mr. Reed to Chief of Staff Erskine Bowles to assist Mr. Bowles in responding to Sen. Conrad's criticisms of the Administration's proposed lookback surcharge legislation. Mr. Reed includes detailed arguments in support of the Administration's proposal." Rice Decl. at 63. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the document reflects presidential decisionmaking or that the email was authored or received to formulate advice to be given to the President. The communications contained in the email were authored for Mr. Bowles to use in responding to criticisms by Sen. Conrad. The deliberative process privilege should apply, however, as the document relays the suggestions of Mr. Reed that bear on the formulation and exercise of agency policy-oriented judgment.

The Special Master believes that Joint Defendants have shown need for this document as it pertains to lookback surcharges to increase prices and decrease youth smoking, which is relevant to the claims and defenses of the parties in this matter. Further, there is no indication that this information is available elsewhere and the email is not "so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency." Coastal States Gas, 617 F.2d at 866.

50. PRA172-3799-3799 [CD 472]

"This document is a January 29, 1998 email from Thomas L. Freedman to Elena Kagan and Bruce N. Reed, with a copy to Mary L. Smith, discussing recent revelations that tobacco companies marketed to children and offering his views as to how this information may affect the Administration's strategy for comprehensive tobacco legislation." Rice Decl. at 63. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The document is factual and informative in nature, relaying that REDACTED REDACTED not deliberative of agency policy.

51. PRA172-3800-3801 [CD 473]

"This document is a series of emails between Cynthia Dailard and Elizabeth Majestic, including a request from Ms. Dailard to Ms. Majestic for an explanation as to apparent differences in government statistics as to the relationship among cigarette smoking, alcohol, and cocaine." Rice Decl. at 63. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it was generated for policymaking purposes with regard to REDACTED and reflects the give-and-take of the consultative process. Ms. Dailard points out that REDACTED REDACTED. PRA172-3801. The Special Master does not believe that Joint Defendants have shown need for these discussions, which address correlations between youth smoking and illicit drug use, as they have not established the relevance of this issue to this case.

E. Executive Branch deliberations regarding the application of the Synar Amendment to individual states and possible changes to that amendment and its related regulations

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

Joint Defendants assert that "these documents contain discussions and communications that demonstrate that the Government was not serious about underage smoking, tolerated or ignored significant problems with efforts to prevent youth smoking at both the federal and state level, and ultimately endorsed amending Synar to allow noncomplying states to nevertheless receive block grant funding." Mot. App. B at 7. Joint Defendants "believe that these documents will support their contention that the Government's efforts to curb youth smoking were pro forma at best and that the Government undermined the beneficent purposes of the Synar Amendment by allowing non-compliant states to receive block grant funding." Id. They assert that discussions "offering insight into why the Government permitted non-complying states to receive their federal funds — in obvious derogation of Synar and its goal of reducing youth smoking — are relevant to the Government's claims and are essential to" the affirmative equitable defenses. Id. at 8.

1. PRA171-2715-2715 [CD 58]

"This September 17, 1999 document is draft press guidance discussing HHS' position on the topic of withholding substance abuse funds from states that have not enforced laws that make it illegal for young people to purchase tobacco products. The document includes background information on the Synar amendment setting forth its requirements, a listing of those states which have not satisfied the requirements of this amendment, and possible modification to the Synar penalties by Congress." Rice Decl. at 64. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The press guidance is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and is therefore predecisional and deliberative.

The Special Master has previously found that discussions regarding enforcement of youth smoking regulations, such as Synar, are related to the issue of incidence of youth smoking, and therefore relevant to this matter. Here, the document is relevant in that it provides background information regarding the government's position regarding enforcement of Synar. Moreover, because the draft is not attributable to any particular employee, the Special Master does not believe that the danger of future chill to agency deliberations is significant. Finally, while Joint Defendants may have access to the final version of the question and answer, they likely would not have access to the relevant background portion, which comprises the majority of the discussions.

2. PRA171-3063-3064 [CD 73]

"This document consist of three emails discussing the Synar Amendment regulation: (a) September 15, 2000, Matthew L. Bennett to Christina S. Ho, relating requests from NAAG (National Association of Attorneys General) for a status report on Synar and the Consumer Protection report; (b) September 20, 2000, from Mr. Bennett to Ms. Ho, seeking guidance from Ms. Ho with respect to how to handle Synar-related issues; and (c) September 20, 2000, Ms. Ho to Mr. Bennett responding to (b) by providing information concerning NAAG involvement and an internal status report on Synar." Rice Decl. at 64. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative in that the emails reveal deliberations concerning the application of the Synar Amendment to individual states and possible changes to that amendment. Further, review of the document does not indicate that it is sufficiently relevant to Joint Defendants' claim of need as the discussion does not pertain to proposed changes to Synar or why the Government permitted non-complying states to receive their federal funds.

3. PRA171-3640-3641 [CD 86]

"This document is an October 4, 1999 email from Monica M. Dixon to Christopher S. Lehane, Melissa B. Ratcliff, David W. Beier, Laura M. Quinn, Brian W. Steel, and Sarah A. Bianchi, with copies to Kay Casstevens, Matthew L. Bennett, and Charles W. Burson providing background concerning a change to the Synar Amendment, including Senate legislative developments, and discussing OVP's strategy for dealing with the issue." Gonzales Decl. Ex. A at 36; Brown Decl. § 15. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative in that the email reveals deliberations concerning the application of the Synar Amendment to individual states and possible changes to that amendment and relays the suggestions of Ms. Dixon as to how to proceed with the issue: REDACTED REDACTED. PRA171-3640. The Special Master does not believe that Joint Defendants have shown need for this document as it relates to a proposal by Senator Harkin, to which Joint Defendants have access, and as they have not shown the relevance of EOP employees' comments to this congressional proposal.

4. PRA172-0094-0096 [CD 145]

"This document is a September 10, 1999 email from Cynthia A. Rice to J. Eric Gould and Eric P. Liu, with a copy to Bruce N. Reed, transmitting a draft internal document entitled `Synar Requirements of the SAMSHA Block Grant,' a background paper that is to be reviewed by Mr. Reed and then used in preparation for an upcoming meeting with the Chief of Staff." Rice Decl. at 65. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it is predecisional to Administration policy on the Synar amendment and deliberative in that it contains recommendations still to be reviewed by Mr. Reed. The Special Master does believe that Joint Defendants' need outweighs Plaintiff's privilege interest as, consistent with prior recommendations addressing deliberations relating to proposed changes to Synar, the Special Master believes that the document is relevant to the claims and defenses in this matter. Moreover, similar discussions are not available from other sources, and release of the document is unlikely to create a future chilling effect on EOP discussions.

5. PRA172-0959-0961 [CD 268]

"This document contains two April 28, 2000 emails: (a) from Patrick Aylward, Program Examiner, Health Division, OMB, to J. Eric Gould, Associate Director for Domestic Policy, DPC, Eugenia Chough, Assistant Director for Domestic Policy, DPC, and Matthew L. Bennett, Special Assistant for Intergovernmental Affairs, White House Office (WHO), with a copy to Thomas J. Reilly, Chief, Health and Human Services Branch, Health/Personnel, OMB, transmitting the OMB Health Division comments on HHS' proposed legislative change to the Synar Amendments penalty structure, including technical edits, substantive criticisms, and proposed alternatives and advising that he anticipates receiving an official HHS position on a specific aspect of the proposal in the near future; and (b) from Ms. Chough to Mr. Aylward, with copies to Mr. Gould, Mr. Bennett, and Mr. Reilly, responding to (a) and suggesting a time to further discuss the issue." Locke Decl. at 18. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Administration decision on the Synar amendment and deliberative in that the document reveals the comments of the OMB Health Division on REDACTED REDACTED. PRA172-0959.

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

6. PRA172-0987-0991 [CD 270]

"This document contains two June 15, 2000 emails and two attachments, the e-mails of which are contained in a document which has been released to defendants (PRA234 0062-0063): (a) from Kevin Burke, HHS, to Patrick Aylward, Program Examiner, Health Division, OMB, and J. Eric Gould, Associate Director for Domestic Policy, DPC, with copies to an unidentified group of recipients, transmitting for OMB's review an HHS revised Synar Amendment proposal (`Proposed Revision to the Synar Program Penalty Structure,' including two penalty options) and `DHHS Responses to OMB Questions and Comments Regarding Proposed Synar Penalty Restructuring;' and (b) from Mr. Aylward to Matthew L. Bennett, Special Assistant for Intergovernmental Affairs, WHO, and J. Eric Gould, Associate Director for Domestic Policy, DPC, with a copy to Thomas J. Reilly, Chief, Health and Human Services Branch, Health/Personnel, OMB, informing them that OMB still has questions about the proposal and suggesting a conference call to discuss these." Locke Decl. at 18. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the privilege claim for pages PRA172-0988-0991, which contains the attachments to the two emails on PRA172-0987 that have been released. The attachments, a proposed revision to Synar and edits to the DHHS responses to questions from OMB on the proposal, are predecisional and deliberative in that the emails indicate that further revision and review was anticipated on the proposal from agency employees. The Special Master does believe that Joint Defendants' need outweighs Plaintiff's privilege interest as, consistent with prior recommendations addressing deliberations relating to proposed changes to Synar, the Special Master believes that the document is relevant to the claims and defenses in this matter.

7. PRA172-1083-1084 [CD 284]

"This document consists of three emails: (a) the e-mail from Patrick Aylward, Program Examiner, Health Division, OMB, in Challenged Document #268, and (b) April 28, 2000, from Eugenia Chough, Assistant Director for Domestic Policy, DPC, to Andrea Kane, Associate Director for Domestic Policy, DPC, forwarding (a); and (c) August 23, 2000, from Ms. Kane to Christina S. Ho, Assistant Director for Domestic Policy, DPC, OPD, EOP, forwarding (a)." Locke Decl. at 18. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege for the same reasons given for Challenged Document #268, notwithstanding Joint Defendants' asserted need.

8. PRA172-1496-1497 [CD 301]

"This document contains two emails: (a) May 5, 2000, J. Eric Gould to Bruce N. Reed and Eric Liu, with copies to Cathy R. Mays, Anna Richter, and Andrea Kane, setting forth a proposal developed by the DPC, OMB, IGA (White House Inter-Governmental Affairs), and HHS to modify the Synar Amendment penalty structure, including giving non-compliant states options as to how to proceed; Mr. Gould discloses that negotiations are continuing within the Executive Branch concerning the development of the proposal; and (b) August 23, 2000, Andrea Kane to Christina S. Ho, forwarding (a)." Rice Decl. at 65. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Executive Branch decision regarding modifying the Synar Amendment penalty structure and deliberative in that Mr. Gould articulates the proposal developed by several agencies: REDACTED REDACTED. PRA172-1496. Mr. Gould asks: REDACTED REDACTED. PRA172-1497.

The Special Master recommends that, consistent with prior recommendations addressing deliberations relating to proposed changes to Synar, the Court order Plaintiff to produce this document to Joint Defendants as it is relevant, not available from other sources, and unlikely to create a future chilling effect on EOP discussions.

9. PRA172-1583-1583 [CD 303]

"This document is an August 23, 2000 email from Andrea Kane to Christina S. Ho concerning two tobacco items: (a) seeking Ms. Ho's assistance in determining who within the Executive Branch should review a Sen. Durbin proposed bill on tobacco labeling and suggesting how the review should be undertaken; and (b) asking Ms. Ho to determine who should attend a meeting to discuss proposed legislation concerning the Synar Amendment, including her suggestions as to who should be involved." Rice Decl. at 65. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because the document reveals the decisionmaking processes of the Domestic Policy Council in reviewing Sen. Durbin's bill and proposed language concerning the Synar Amendment.

Joint Defendants argue that documents pertaining to advertising/labeling of tobacco products

likely discuss or analyze whether existing advertising restrictions, including those self-imposed by Joint Defendants, those imposed by Congress or the FTC, or those imposed by agreement through the MSA, are adequate; whether further tobacco advertising restrictions are necessary or justified; whether advertising plays a role in youth smoking rates and, if so, to what extent it plays a role; whether the warning labels required by Congress are adequate; whether additional or revised warnings are necessary or justified; and/or, the economic impact of advertising restrictions on Tobacco Industry profits or federal revenues.

Mot. App. B at 21-22. Hence, according to Joint Defendants, "[t]o the extent these documents reveal such discussions or analyses concerning tobacco advertising these documents are relevant to the claims and defenses in this litigation, including `laches,' `waiver,' `estoppel,' `unclean hands,' ` in pari delicto,' and First Amendment defenses." Id. at 22.

The Special Master recommends that the Court reject Joint Defendants' claim of need because the Court dismissed Defendants' equitable defenses of waiver, equitable estoppel, laches, unclean hands, and in pari delicto in Order # 476. See Report and Recommendation #154 (adopted by Order #541). Moreover, with respect to the First Amendment claims, the discussions here relate to a Senate bill relating to tobacco labeling, to which Joint Defendants already have access.

10. PRA172-1698-1700 [CD 315]

"This document is a January 24, 1997 email from Vivian Grishkot to a large group of White House personnel forwarding a January 24, 1997 memorandum from Mary Beth Donohue providing the President with a summary of `Hot Issues' for a National Governors Association meeting, including concerning possible non-compliance by certain states with the Synar Amendment regulations. (Most of this document is nonresponsive.)" Rice Decl. at 66. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was created by a member of the White House Office to advise the President on issues for a National Governors Association meeting. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains important evidence, especially as the document is largely non-responsive.

F. Executive Branch 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

In 1993, the Department of Veterans Affairs (VA) Office of General Counsel (OGC) issues an opinion concluding that "Federal law compelled VA to provide disability compensation or death benefits for those veterans with certain tobacco-related illnesses and disabilities resulting from tobacco use during active military service." Locke Decl. at 19. Later, in 1997, "VA OGC further concluded 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." Id. With potential costs in the billions of dollars, "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. "Ultimately, the Clinton Administration proposed legislation in the FY 1999 Budget to amend federal law on this point." Id.

Joint Defendants state that the legislation enacted by the Clinton Administration in the mid 1990's overturned "the earlier decisions granting compensation to veterans with smoking-related illnesses." Mot. App. B at 20. Joint Defendants believe, therefore, that the documents "contain discussions and communications demonstrating that the fundamental rationale behind this legislation was that smoking was a matter of choice" and "reflect on the role and responsibility of the Government itself in fostering smoking within the military." Mot. App. B at 20. According to Joint Defendants, such discussions and communications are directly relevant to their affirmative defenses, including laches, waiver, estoppel, unclean hands, in pari delicto, and participation in a RICO enterprise.Id. at 20-21. Moreover, to the extent the communications indicate that the rationale for the legislation was that smoking was a matter of choice, Joint Defendants aver that "such an acknowledgement would likewise be relevant with respect to the Government's allegations of fraud." Id. at 20.

1. PRA171-3834-3835 [CD 91]

"This document is a March 3, 1999 email from Toni S. Hustead, Chief, Veterans Affairs Branch, Health/Personnel, OMB, to David R. Thomas, Deputy Director, Legislative Affairs, OVP, most of which is non-responsive, forwarding a series of questions concerning the President's VA-related budget proposals, including one question relating to the proposal to restrict coverage of tobacco-related illnesses and to a new smoking cessation program." Locke Decl. at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The document contains a list of proposed questions regarding the President's VA budget for REDACTED by Mr. Thomas. It appears from in camera review that these questions were generated to REDACTED REDACTED. The document is not deliberative; it merely contains a list of questions without answers that do not pertain to the formulation of agency policy.

2. PRA172-1662-1662 [CD 313]

"This document is a June 26, 1997 email from Elizabeth Drye to Barry J. Toiv providing her views concerning VA's position on covering tobacco-related illnesses and suggesting a conference call to discuss the matter further." Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The document concerns the policy decision already made by the VA, which is not protected by the privilege. 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 . . ."). There is no indication that the document is predecisional and reflects the give-and-take of the consultative process in formulating agency policy.

3. PRA172-2211-2211 [CD 351]

"This document consists of two June 25, 1997 e-mails: (a) from Bruce D. Long, Deputy Associate Director, VA, Health/Personnel, OMB, to Nancy-Ann Min, Associate Director for Health and Personnel, OMB, providing comments to an earlier e-mail from Ms. Min (not part of this document) on the Administration's proposed legislation covering tobacco-related illnesses; and (b) from Ms. Min to Barry J. Toiv, Deputy Assistant to the President and Deputy Press Secretary, WHO, forwarding (a)." Locke Decl. at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The document is not predecisional; instead, it clarifies and explains the Administration's proposed legislation regarding tobacco-related illnesses, which was already made public: REDACTED REDACTED. PRA172-2211. Thus, the document should not be protected by the privilege. 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 . . .").

4. PRA172-2930-2935 [CD 414]

"This document is an October 28, 1997 email from Charles Konigsberg, Assistant Director for Legislative Affairs, OMB, to Franklin D. Raines, Director, OMB, with copies to a large group of OMB and White House personnel, forwarding a background memorandum, talking points, and draft legislation, concerning proposed legislation to change VA coverage of tobacco-related illnesses for meetings with Senators Rockefeller and Specter." Locke Decl. at 20. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. Pages PRA172-2930-2931 only contain non-substantive information already revealed in the Locke Declaration. Pages PRA172-2932-2935 appear to relate to already established policy, namely, proposed legislation REDACTED REDACTED and relays the Administration's public position: REDACTED REDACTED. PRA172-2932. Thus, the document should not be protected by the privilege.

G. Executive Branch deliberations regarding international tobacco issues, including the Framework Convention on Tobacco Control

Ms. Rice explains that the documents in this group relate to President Clinton's September 17, 1997 remarks concerning the June 1997 proposed settlement between the states and the tobacco companies, in which he "included as part of his five key elements that must be at the heart of any national tobacco legislation `the strengthening of international efforts to control tobacco.'" Rice Decl. at 67. According to Ms. Rice, "the White House (including particularly the DPC), OMB, the United States Trade Representative (`USTR'), HHS, Department of State, Treasury, Department of Justice, and sometimes other Executive Branch agencies worked together to consider possible legislation, regulations, or programs to advance the President's directive that the United States become involved in strengthening international efforts to control tobacco," including "participation in the World Health Organization's Framework Convention on Tobacco Control (`FCTC')." Id.

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

Joint Defendants assert that their need for the documents categorized in this group outweighs Plaintiff's privilege interest. They "believe that these documents contain discussions and communications concerning the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel" and that "[a]s a consequence of its deliberate actions, the Government has contributed to increased rates of smoking initiation and prevalence." Mot. App. B at 23. They further assert their belief that the documents in this group "contain discussions and communications balancing the economic interests of the Government in promoting the growth of domestic tobacco and the sale of tobacco products to foreign markets and American military personnel, against the public health concerns associated with the use of tobacco products," and are thus relevant to their affirmative equitable defenses. Id.

Joint Defendants also argue that these documents "are relevant insofar as they acknowledge that the Federal government has deliberately and consciously struck this balance with full awareness and knowledge of the risks associated with smoking, and with full awareness, knowledge, and in some instances support, of Joint Defendants' allegedly fraudulent conduct." Id. at 23-24. Moreover, "such discussions offer insight into the equity of the Government's requested injunctive relief in light of the Government's participation in, and profiting of, Joint Defendants' alleged RICO conspiracy, as well as what the Government believed was appropriately considered in determining whether to promote and sponsor the growth of domestic tobacco, as well as the sale of tobacco products in foreign markets and to American military personnel." Id. at 24.

1. PRA171-3067-3068 [CD 74]

"This document is a September 12, 2000 email from Christina S. Ho to Jennifer Havercamp, Sean R. Dobson, John D. Duncan, Karl Ehlers, Patrick M. Dorton, and Hal S. Shapiro, with copies to Anna Richter, Andrea Kane, Julie T. Bosland, and Lisa Kountoupes, requesting review of and comment on the attached draft press guidance on `Doggett Tobacco Amendment to H.R. 4896,' that provides background information on the amendment and discusses the Administration's view of the relation of the amendment to existing tobacco policy. Ms. Ho notes that this paper must be reviewed and approved by the NEC (National Economic Council) and NSC (National Security Council) as well." Rice Decl. at 68. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative "is a draft of what will become a final document" and is "recommendatory in nature" in that Ms. Ho requests further review. Coastal States Gas, 617 F.2d at 866. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and because the discussions are not relevant to Joint Defendants' need arguments, which focus on their belief that the government was encouraging tobacco use abroad.

2. PRA171-3069-3069 [CD 75]

"This document consists of two September 11, 2000 emails: (a) Christina S. Ho to Barbara Chow, Karin Kullman, and Anna Richter, with copies to Andrea Kane and Jennifer E. McGee, providing background concerning and discussing how the Administration should handle two apparently contradictory commitments concerning proposed legislation that includes international tobacco provisions; and (b) Ms. Ho to Lisa Kountoupes, forwarding (a)." Rice Decl. at 68. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to an Administration decision on how to handle the contradictory commitments concerning the proposed legislation, and deliberative in that Ms. Ho relays her views of the issue. Further, after in camera review, there is no indication that this document is sufficiently relevant to Joint Defendants' claims of need, which focus on their belief that the government was fostering tobacco use abroad.

3. PRA172-0869-0869 [CD 258]

"This document contains two November 17, 1996 emails from Jeffrey A. Frankel to Charles F. Stone and Joseph E. Stiglitz, with copies to a group of White House personnel, suggesting the preparation of a briefing memo concerning the sale of U.S. tobacco products overseas and a possible effect of those sales." Gonzales Decl. Ex. A at 37. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment . . . The deliberative process privilege, we underscore, is centrally concerned with protecting the process by which policy is formulated." Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original); see Ethyl Corp. v. United States Environmental Protection Agency, 25 F.3d 1241, 1248 (4th Cir. 1994) ("Thus, the privilege does not protect a document which is merely peripheral to actual policy formation; the record must bear on the formulation or exercise of policy-oriented judgment."). Plaintiff has not shown how this email bears on the formulation of agency policy. The email only REDACTED REDACTED. Thus, the document should not be protected.

4. PRA172-0870-0870 [CD 259]

"This document is an August 25, 1999 email from Yu-Chin Chen to H. Hall and C. DeFilippo asking a question about tariffs (that may or may not relate to tobacco; this cannot be determined from the email)." Gonzales Decl. Ex. A at 37. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "[T]he 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." Coastal States Gas, 617 F.2d at 868. Plaintiff has not done so here.

H. Executive Branch deliberations regarding tobacco farmers, including especially efforts to assist tobacco farmers and their communities

As previously noted, President Clinton expressed in his September 17, 1997 statement regarding the June 1997 proposed settlement between the states' attorneys general and the tobacco industry, that "protection for tobacco farmers and their communities" be one of "the five key elements that must be at the heart of any national tobacco legislation." Rice Decl. at 68. Accordingly, the Executive Branch "considered various proposals dealing with United States tobacco farmers, including proposals to assist tobacco farmers who chose or would be required to cease growing tobacco as part of any national tobacco legislation or settlement with the tobacco companies." Id. The "purpose of the review and analysis of the proposed settlements and legislation was (1) to assist the White House, OMB, and the Executive Branch agencies and offices in becoming familiar with and understanding the work being done with respect to tobacco farmer issues, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch should take with respect to the issues and any proposed legislation, regulations, or programs." Id. at 69.

Joint Defendants assert their belief that "these documents contain discussions and communications concerning the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel." Mot. App. B. at 23. According to Joint Defendants, "[a]s a consequence of its deliberate actions, the Government has contributed to increased rates of smoking initiation and prevalence." Id. They further assert that

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

Id. at 24.

1. PRA171-1933-1935 [CD 11]

"This document consists of six July 23, 1998 emails transmitting and discussing the content of a draft letter from the President to tobacco farmers concerning their opposition to the proposed tobacco lawsuit: (a) John H. Corcoran to Thomas L. Freedman, with a copy to Debra D. Alexander, forwarding the draft letter and requesting review and comment of the language contained therein; (b) Mr. Freedman to Mary L. Smith, asking Ms. Smith to respond to (a); (c) Ms. Smith to Mr. Corcoran and Mr. Freedman, with a copy to Cynthia A. Rice, discussing whether a letter to the tobacco farmers is needed, (d) Ms. Rice to Ms. Smith, with copies to Mr. Corcoran, Mr. Freedman, and J. Eric Gould, offering suggested edits for the draft letter; (e) Ms. Smith to Ms. Rice, with copies to Mr. Corcoran, Mr. Freedman, and Mr. Gould, inquiring as to how the President will sign the letter; and (f) Mr. Corcoran to Ms. Smith, with copies to Ms. Rice, Mr. Freedman, Debra D. Alexander, and Mr. Gould, responding to (e)." Rice Decl. at 69. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The emails were exchanged among members of the White House Office and Domestic Policy Council of EOP for the purpose of advising the President on the content of a draft letter from the President to tobacco farmers. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, especially because this letter was to be sent to the tobacco farmers.

2. PRA171-1970-1970 [CD 12]

"This document is a July 31, 1998 email from Bruce N. Reed to Thomas L. Freedman offering a tongue-in-cheek opinion as to Congressman Waxman's position on tobacco farmers." Rice Decl. at 69. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "[T]he 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." Coastal States Gas, 617 F.2d at 868. Plaintiff has not done so here.

3. PRA171-2120-2121 [CD 23]

"This document consists of two September 29, 1998 emails: (a) Mary L. Smith to Elena Kagan, with copies to Thomas L. Freedman, Laura Emmett, and Cynthia Dailard, transmitting a draft letter from the President to Jim Graham, Commissioner of North Carolina Department of Agriculture, concerning the declining tobacco quota and tobacco exports and advising that USDA officials have reviewed and prepared a draft response regarding the letter; and (b) Ms. Emmett to Ms. Smith, informing Ms. Smith that she just sent Elena Kagan's comments concerning the proposed letter to Ms. Smith." Rice Decl. at 69-70. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The emails were solicited and received by high-level presidential advisors within DPC to advise the President on the content of a draft letter to be sent from the President to Jim Graham, Commissioner of North Carolina Department of Agriculture. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence, especially because this letter was presumably sent to Commissioner Graham in final form.

4. PRA171-2132-2134 [CD 26]

"This document is a March 9, 1998 email from Mary L. Smith to Thomas L. Freedman transmitting a draft memorandum that provides background information on the tobacco program and sets forth a description and analysis of the three main tobacco bills — Ford, Robb, and Lugar." Rice Decl. at 70. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the privilege. "The deliberative process privilege does not . . . protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would reveal the government's deliberations." In re Sealed Case, 121 F.3d at 737. Page PRA171-2132 only contains non-substantive information and a hex dump. Page PRA171-2133 contains the draft memorandum, but there is no indication from an in camera review that the document contains any deliberative material that would reveal government deliberations. The memorandum relays factual background information on the tobacco program and a brief summary of three tobacco bills.

5. PRA171-2210-2210 [CD 29]

"This document is a May 20, 1998 email from Thomas L. Freedman to Sarah A. Bianchi, Cynthia A. Rice, Christopher C. Jennings, and Bruce N. Reed, with a copy to Mary L. Smith, providing his recommendation for a statement by the Administration as to its position concerning Sen. Lugar's tobacco farmer legislation proposal." Rice Decl. at 70. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the email was authored or solicited and received to formulate advice to be given the President. Instead, the email contains draft language for a press conference. The Special Master does believe that the deliberative process privilege applies as the email relays the suggestion by Mr. Freedman as to how to address Sen. Lugar's tobacco farmer legislation proposal and is, thus, predecisional to a position on that proposal. Further, in camera review does not indicate that the document is sufficiently relevant to Joint Defendants' claims of need.

6. PRA171-3072-3085 [CD 76]

"This document is a September 14, 2000 email from Anna Richter to a large group of White House personnel transmitting an internal paper entitled `Domestic Policy Announcements and Event Opportunities,' and requesting review and revision as needed. Most of this document is non-responsive. The tobacco portion, at 3081, discusses the pending proposal for a `Tobacco/Roundtable Discussion Between Farmers and the Public Health Community.'" Rice Decl. at 70. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the presidential communications privilege claim. Page PRA171-3072 contains only the email distribution list and is not protected. Pages PRA171-3073-3085 contains the body of the email, which was authored by a member of the DPC who has the responsibility for formulating advice to the President on REDACTED REDACTED. PRA171-3073. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial, especially as the document is largely non-responsive.

7. PRA172-1046-1048 [CD 276]

"This document contains three emails: (a) August 10, 2000, John Winski to Andrea Kane, discussing a tobacco farmer buy-out proposal made to Vice President Gore by Kentucky Governor Patton; Mr. Winski presents background about the tobacco farmers' situation, discusses whether tobacco farmers likely would support a proposed buy-out, presents arguments in support of and against the proposed buy-out, and discusses the possible cost of such a buy-out; (b) August 10, 2000, Ms. Kane to Matthew L. Bennett and Thomas L. Freedman, forwarding (a), soliciting their views as to public health comments concerning the proposal, and asking for their guidance as to whether others outside the Executive Branch should be consulted; and (c) Mr. Bennett to Ms. Kane, with a copy to Mr. Freedman, responding to (b) with his views as to whether to consult those outside the Executive Branch." Rice Decl. at 71. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of privilege. The emails were solicited and received by members within the Office of the Vice President, DPC and WHO who have responsibility for formulating advice to the President on a tobacco farmer buy-out proposal made to Vice President Gore by Kentucky Governor Patton. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence. In particular, Joint Defendants have not demonstrated that communications regarding buyout proposals are directly relevant to any claim or defense still viable in this litigation.

8. PRA172-1383-1386 [CD 299]

"The withheld portion of this document contains two emails: (a) May 20, 1998, Thomas L. Freedman to Bruce N. Reed, with a copy to Mary L. Smith, transmitting a table comparing Sens. Ford and Lugar tobacco farmer legislative proposals; and (b) August 10, 2000, Andrea Kane to John Winski, transmitting a tobacco farmer proposal (not included in the document) and seeking further information from Mr. Winski about a buy-out proposal from Gov. Patton." Rice Decl. at 71. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "The deliberative process does not . . . protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would reveal the government's deliberations." In re Sealed Case, 121 F.3d at 729. Page PRA172-1383 (the emails) only contains non-substantive information already revealed in the declaration of Ms. Rice. Plaintiff already released pages PRA172-1384-1386. See Reply Ex. 1 (8/7/03 Letter from M. Burrell to N. Nierengarten).

9. PRA172-1827-1827 [CD 332]

"This document is an October 11, 1996 email from Lorraine McHugh to Jennifer M. O'Connor, with a copy to Shana E. Tesler, relaying questions concerning tobacco farmers for the President from a newspaper and providing her opinion with respect to how these questions should be handled." Rice Decl. at 71. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The email was solicited and received by high-level WHO presidential advisors who have responsibility for formulating advice to the President on press questions regarding tobacco farmers. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants can show that a reporter's questions likely contain evidence directly relevant to the issues that are expected to be central to the trial.

10. PRA172-2603-2603 [CD 381]

"This document contains two February 3, 1998 emails: (a) Barbara D. Woolley to Thomas L. Freedman, seeking DPC concurrence on a recommendation for a USDA Secretary Glickman visit to a tobacco state; and (b) Mr. Freedman to Elena Kagan and Bruce N. Reed, with a copy to Laura Emmett, forwarding (a) and offering his recommendation as to what the response should be." Rice Decl. at 72. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "The deliberative process privilege, we underscore, is centrally concerned with protecting the process by which policy is formulated. Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). Here, the email concerns whether Secretary Glickman should REDACTED REDACTED. Mr. Freedman answers: REDACTED. Plaintiff has not shown how this email exposes the deliberative process by which policy is formulated.

11. PRA172-3793-3795 [CD 470]

"This document is a May 18, 1998 email from Thomas L. Freedman to Peter G. Jacoby, with a copy to Mary L. Smith, transmitting a May 18, 1998 draft letter from the President to Sen. Ford concerning Sen. Ford's tobacco farmer legislative proposal to be included in the McCain bill." Rice Decl. at 72. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Pages PRA172-3793-3794 only contain nondeliberative information and a hex dump. Page PRA172-3795, however, contains the draft letter solicited and received by high-level WHO and DPC advisors for the purpose of advising the President on the content of a letter from the President to Senator Ford. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence, especially because the letter was presumably sent to Senator Ford.

12. PRA172-3846-3846 [CD 478]

"This document is a July 16, 1997 email from Elizabeth Drye to Thomas L. Freedman, Elena Kagan, Mary L. Smith, Jerold R. Mande, and Bruce N. Reed offering her suggestions for stating the Administration's position on an anticipated House amendment relating to tobacco crop insurance and her suggestions for following up on a recommendation by Drs. Koop and Kessler for a panel to provide strategies for reducing dependence of certain states and communities on tobacco." Rice Decl. at 72. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The email was solicited and received by high-level DPC advisors for the purpose of advising the President regarding the formulation of the Administration's position on an anticipated House amendment relating to tobacco crop insurance. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to viable claims and defenses that are expected to be central to the trial.

13. PRA172-3856-3856 [CD 481]

"This document is an October 8, 1998 email from Thomas L. Freedman to Mary L. Smith forwarding an October 8, 1998 email from Bruce N. Reed to Kevin S. Moran, with a copy to Mr. Freedman, discussing an anticipated call from a congressman to Chief of Staff Erskine Bowles to ask the Administration how it will respond to the congressman's proposal for legislation to allow USDA to promote tobacco leaf exports. Mr. Reed discusses the factors that should be considered in determining how the Administration should respond to this anticipated request." Rice Decl. at 72. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The email was solicited and received by high-level WHO and DPC advisors for the purpose of formulating advice on the position of the Administration on legislation to allow USDA to promote tobacco leaf exports. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to still viable claims and defenses that are expected to be central to the trial.

14. PRA172-3998-3998 [CD 494]

"This document is a September 9, 1997 email from Thomas L. Freedman to Elena Kagan and Bruce N. Reed, with a copy to Mary L. Smith, reporting on and analyzing a meeting between Bruce Lindsey and Gov. Patton, Sen. Ford, and a burley tobacco grower regarding legislative programs to assist tobacco farmers, including Sen. Ford's proposal. Mr. Freedman includes his opinions with respect to a portion of Sen. Ford's proposal and possible problems with the program proposed by the Kentucky officials (including relating an opinion by USDA with respect to one of those potential problems)." Rice Decl. at 73. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The document is informative in nature, relaying discussions during a meeting that included persons outside the governmental agencies. The email appears only to reflect possible problems mentioned during the meeting by the participants. There is no indication that the document is deliberative in nature or "inaccurately reflect[s] or prematurely disclose[s] the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States Gas, 617 F.2d at 866.

I. Executive Branch deliberations regarding second-hand smoke cigarette smoke, also known as environmental tobacco smoke ("ETS")

Early in the Clinton/Gore Administration, certain Executive Branch agencies, led by OSHA and EPA, "began to consider proposals to reduce nonsmokers' exposure to cigarette smoke." Rice Decl. at 73. "The Administration also considered and discussed cigarette- and smoking-related proposed legislation that contains provisions relating to second hand smoke." Id. The purpose of this review and analysis was "(1) to assist the White House, OMB, and the Executive Branch agencies and offices in becoming familiar with and understanding the work being done with respect to second hand smoke issues, and (2) to prepare recommendations for White House and other senior Administration officials as to what positions the Executive Branch should take with respect to the issues and any proposed legislation, regulations, actions, or programs." Id. at 73-74.

Joint Defendants argue that documents pertaining to ETS are relevant to the claims and defenses in this action. They cite Plaintiff's claim that "Joint Defendants continue to further the alleged RICO enterprise by `deny[ing] that ETS causes disease in nonsmokers . . . despite the contrary conclusions of countless medical and scientific organizations . . .'" Mot. App. B at 3, quoting Pl.'s FOF at § VIII ¶ 25.

Further, Joint Defendants "believe that the documents in this group likely discuss whether ETS is causally associated with disease, whether there is a legitimate scientific controversy on whether ETS is causally associated with disease, whether ETS exposure in the work place is a problem worthy of national attention or regulation, and/or whether to take action regarding ETS." Id. at 4. According to Joint Defendants, these documents contain information that "likely rebuts the Government's allegations in this case that there is no legitimate scientific controversy as to whether ETS causes disease" and are relevant to their affirmative defenses of laches, waiver and estoppel. Id.

1. PRA171-1893-1895 [CD 4]

"This document consists of two July 9, 1998 emails forwarding a paper entitled `Discussion Paper on Environmental Tobacco Smoke ____ Draft ____ July 7, 1998,' setting forth in detail the bases for (1) possible rulemaking by Executive Branch agencies and (2) possible action by the President, with respect to environmental tobacco smoke ("ETS"): (a) Emily Sheketoff to Cynthia Dailard, and (b) Cynthia Dailard to Cynthia A. Rice." Rice Decl. at 74. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA171-1893 only contains nonsubstantive transmittal information and a hex dump and is not protected. Pages PRA171-1894-1895, however, contain a draft discussion paper for use by high-level DPC advisors in advising the President on possible action concerning ETS. The paper suggests that the President REDACTED REDACTED. PRA171-1894. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial. In camera review does not support that the document "rebuts the Government's allegations . . . that there is no legitimate scientific controversy as to whether ETS causes disease," Mot. App. B at 4, and the equitable affirmative defenses cited by Joint Defendants have since been dismissed from this action. See Order #476.

2. PRA171-1896-1897 [CD 5]

"This document is a March 30, 1998 email from Cynthia Dailard to Cynthia A. Rice forwarding draft press guidance, incorporating suggestions from the Department of Health and Human Services (`HHS'), concerning ETS and the ETS provisions in the McCain legislation." Rice Decl. at 74. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. PRA171-1896 only contains non-substantive information and a hex dump and is not protected. PRA171-1897, however, is predecisional and deliberative because it is "recommendatory in nature" as "a draft of what will become a final document." Coastal States Gas, 617 F.2d at 866. Further, Joint Defendants cannot show sufficient need for the document as the document does not "rebut the Government's allegations . . . that there is no legitimate scientific controversy as to whether ETS causes disease," Mot. App. B at 4, and, as press guidance, the same or similar information likely is available from other sources.

3. PRA171-3730-3730 [CD 89]

"This document is an April 20, 1999 email from Cynthia A. Rice to Karin Kullman, J. Eric Gould, Elena Kagan, Sarah A. Bianchi, Laura Emmett, and Bruce N. Reed discussing the content of the EPA public service announcements about parent smoking and protecting children from secondary smoke and seeking guidance as to whether the White House should release the announcements." Rice Decl. at 74. Plaintiff asserts the deliberative process privilege.

This document is actually a duplicate of PRA079-0688-0688, considered as Challenged Document #227 in Report and Recommendation #164. Consistent with the earlier recommendation,see RR #164 at 89-90, the Special Master recommends that the Court sustain the privilege claim for Challenged Document 89 here, notwithstanding Joint Defendants' claimed need.

4. PRA171-4362-4374 [CD 126]

"This document is a[n] April 9, 1998 email from Emily Sheketoff to Cynthia Dailard, forwarding the Department of Labor's `Comments on Senate Commerce Committee Bill' in chart format, which [contain] Labor's proposed changes to ETS-related provisions in the McCain bill." Rice Decl. at 74-75. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. PRA171-4362 only contains non-substantive information and a hex dump. Pages PRA171-4363-4374, however, are predecisional and deliberative because they reveal the comments and proposed changes of DOL on the McCain bill. Further, Joint Defendants cannot show sufficient need for the document as the document does not "rebut the Government's allegations . . . that there is no legitimate scientific controversy as to whether ETS causes disease," Mot. App. B at 4, and the equitable defenses cited have since been dismissed. See Order #476.

5. PRA172-0441-0441 [CD 181]

"This document consists of three April 20, 1999 emails discussing whether the White House should approve the release of EPA public service announcement (`PSA') concerning second hand smoke: (a) Bruce N. Reed to Cynthia A. Rice providing his opinion as to whether the statement should be released; (b) Ms. Rice to Elena Kagan, Laura Emmett, J. Eric Gould, and Sarah A. Bianchi, forwarding Mr. Reed's email response, providing her opinion as to what to do, and soliciting comment from OVP; and (c) Ms. Bianchi to Ms. Rice responding to (b) with a recommendation as to what action to take." Rice Decl. at 75. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to a White House decision regarding whether to release the EPA PSA and deliberative in that it reveals the opinions and personal views of the email authors. Further, Joint Defendants cannot show sufficient need for the document as the document does not "rebut the Government's allegations . . . that there is no legitimate scientific controversy as to whether ETS causes disease," Mot. App. B at 4, and the equitable defenses cited have since been dismissed. See Order #476.

6. PRA172-2259-2260 [CD 354]

"This document is an October 17, 1996 email from Vivian Grishkot to a group of White House personnel forwarding an October 16, 1996 memorandum from Mary Beth Donohue to the President listing `Hot Issues' in certain states, including mentioning the status of two class action lawsuits (concerning manipulation of nicotine levels and second-hand smoke). (Most of the document is non-responsive.)" Rice Decl. at 75. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privileges. There is no indication from the declaration of Ms. Rice or in camera review that the document was solicited or received for the purpose of formulating advice to the President on the issues to which the email relates. Instead the email appears to be an FYI to the various recipients. In addition, the document is neither "recommendatory in nature or a draft of what will become a final document" or "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866.

7. PRA172-3913-3914 [CD 487]

"This document contains two June 2, 1997 emails: (a) Bruce N. Reed to Elena Kagan and Elizabeth Drye reporting on a conversation he had with Kevin Thurm concerning the Administration's approach to the anticipated proposed settlement between the states and the tobacco companies and a possible Executive Order on smoking in federal workplaces; and (b) Ms. Drye to Ms. Kagan and Mr. Reed, responding to (a) with her opinion as to the approach that the Administration should take concerning the possible Executive Order and reporting on other information she is gathering concerning second hand smoke activities. Ms. Drye also presents her analysis of an anticipated legislative proposal, including a lookback surcharge, and requests guidance as to how the Administration should respond to these." Rice Decl. at 75-76. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain in part the claim of presidential communications privilege. Page PRA172-3914 contains essentially a blank page and does not qualify for protection. Page PRA172-3913, however, contains emails solicited and received by high-level DPC advisors with the responsibility for advising the President on a potential Executive Order on smoking in federal workplaces. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence. The document does not "rebut the Government's allegations . . . that there is no legitimate scientific controversy as to whether ETS causes disease," Mot. App. B at 4, and the equitable defenses cited have since been dismissed from this litigation. See Order #476.

J. Miscellaneous documents involving Executive Branch deliberations

Joint Defendants assert that, "[b]ased upon privilege log descriptions and additional information provided by the government during the meet and confer process," they believe that the documents in this category "relate to various aspects of the Government's allegations and Joint Defendants affirmative defenses, such as `unlcean hands,' `in pari delicto,' `laches' and `equitable estoppel.'" Mot. App. B at 28. Additionally, "to the extent such deliberations or analyses comment on any of the specific allegations of Joint Defendants' fraudulent conduct, or to any of the equitable relief requested by the Government in this action, those deliberations and analyses are equally important that would not be available through other sources."Id.

1. PRA171-2510-2510 [CD 45]

"This document is a June 23, 1999 email from Cynthia A. Rice to Martha Foley reporting on Bruce Reed's intention to discuss with Sen. Harkin a tobacco-related amendment that Sen. Harkin was considering offering." Rice Decl. at 76. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that this document was authored or solicited and received for the purpose of formulating advice to the President on the tobacco-related amendment.

The Special Master also recommends that Court overrule the claim of deliberative process privilege. "[T]he 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." Coastal States Gas, 617 F.2d at 868. Ms. Rice, on behalf of EOP, has not done so here.

2. PRA171-2514-2514 [CD 46]

"This document is a June 23, 1999 email from Cynthia A. Rice to Bruce N. Reed, with a copy to J. Eric Gould, forwarding the proposed text of a tobacco-related amendment by Sen. Harkin and forwarding the Department of Justice's legal opinion concerning this amendment." Rice Decl. at 76. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. This document pertains to the same subject as Challenged Document 45 and, similar to that document, Ms. Rice has not established what deliberative process is involved and the role played by the document in that process. The fact that the Department of Justice provided a legal opinion on Sen. Harkin's amendment does not establish the predecisional status or deliberative nature of this email.

3. PRA171-2561-2561 [CD 51]

"This document contains two February 5, 1999 emails: (a) Sean P. Maloney to Elena Kagan, offering his agency's views on and seeking Ms. Kagan's guidance as to whether a memorandum from Secretary Shalala on the HHS response to the President's directive on the public disclosure and availability of tobacco documents should be sent to the President; and (b) Ms. Kagan to Mr. Maloney, stating that she will review the issue." Rice Decl. at 76. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privileges. The substantive portions of the emails are already revealed in the declaration of Ms. Rice. Thus, the document should not be protected from discovery.

4. PRA171-2812-2822 [CD 64]

"This document consists of two June 8, 1999 emails: (a) Thomas J. Perrelli to Cynthia A. Rice, transmitting draft responses to questions posed by Senator McConnell concerning this lawsuit; and (b) Ms. Rice to Richard J. Turman, Daniel Mendelson, Jeffrey A. Farkas, and Victoria A. Wachino, with a copy to J. Eric Gould, forwarding (a). Although the attachment is referred to as `the final versions of the McConnell QA on the tobacco litigation,' in fact this document is not the final version. The final version is that which eventually was sent to Senator McConnell by separate letter." Rice Decl. at 77. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The attachment is referred to as the final version of the QA in the email. Although the QA were sent by separate letter to Sen. McConnell, Ms. Rice does not state that the content differed in any way. Thus, the purposes of the deliberative process privilege would not be served by protecting this document.

5. PRA171-3348-3352 [CD 80]

This document "consists of two emails discussing concerns about an upcoming campaign speech by Vice President Gore regarding cancer and cancer research: (a) June 25, 1999, Alejandro G. Cabrera to Laura M. Quinn, transmitting a former speech by the Vice President (the released portion of the document) and noting his concerns about the upcoming speech; and (b) June 26, 1999, Ms. Quinn to Eli G. Attie, forwarding (a) and offering her further comments about Mr. Cabrera's concerns." Brown Decl. § 15. Ms. Brown declares that the "withheld portion of this document is non-responsive." Id. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. The emails were authored and received by members of the Office of the Vice President and were prepared in the course of advising the Vice President on a campaign speech. In Report and Recommendation #164, the Special Master cited this Circuit Court's admonition that the "presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President," In re Sealed Case, 121 F.3d at 752, and, therefore limited the applicability of the privilege to documents that ultimately called for Presidential decisionmaking, not decisionmaking of the Vice President or other high-ranking officials. Thus, the presidential communications privilege should not be sustained here.

The Special Master recommends that the Court overrule the claim of deliberative process privilege. "The deliberative process privilege . . . is centrally concerned with protecting the process by which policy is formulated." Petroleum Information Corp., 976 F.2d at 1435 (emphasis in original). The emails do not relate to the process by which policy is formulated; instead, the document concerns a campaign speech. However, because the document is non-responsive, the Special Master recommends that the Court not order Plaintiff to release the document to Joint Defendants.

6. PRA171-3729-3729 [CD 88]

"This document consists of two April 21, 1999 emails between Devorah R. Adler and Sarah A. Bianchi: (a) Ms. Adler requesting that Ms. Bianchi review her draft press guidance concerning the results of a recent cancer study performed by the American Cancer Society, the National Cancer Institute, and the CDC regarding the incidence of cancer among minority groups; and (b) Ms. Bianchi's response, providing comments on and suggestions for Ms. Adler's draft." Brown Decl. § 15. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because the press guidance is "a draft of what will become a final document," Coastal States Gas, 617 F.2d at 866, and the emails reflect the request of Ms. Adler for review and Ms. Bianchi's comments in response. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as press guidance, the same or similar information is likely available from other sources, and as discussions regarding incidence of cancer are not relevant to their claims of need.

7. PRA171-4063-4063 [CD 99]

"This document consists of two October 22, 1998 emails: (a) Jerold R. Mande to Sarah A. Bianchi, with copies to Bruce N. Reed, Cynthia A. Rice, and Cynthia Dailard, providing his suggestions for research ideas for the Vice President to consider, opining on the importance of research programs in the war on tobacco, and recommending a strategy for proposing the topics to the NCI and NIH for approval; and (b) from Ms. Dailard to Ms. Bianchi, forwarding (a) and offering a personal observation." Rice Decl. at 77. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. The email was prepared by a member of the Office of the Vice President in the course of advising the Vice President on tobacco research ideas for him to consider. In Report and Recommendation #164, the Special Master cited this Circuit Court's admonition that the "presidential communications privilege should never serve as a means of shielding information regarding governmental operations that do not call ultimately for direct decisionmaking by the President,"In re Sealed Case, 121 F.3d at 752, and, therefore limited the applicability of the privilege to documents that ultimately called for Presidential decisionmaking, not decisionmaking of the Vice President or other high-ranking officials. Thus, the presidential communications privilege should not be sustained here.

The Special Master recommends that the Court sustain the claim of deliberative process privilege. The email is predecisional and deliberative because Mr. Mande suggests to Ms. Bianchi REDACTED REDACTED. PRA171-4063.

Joint Defendants argue that "[t]o the extent the research concerned ETS, addiction, or smoking and disease, such research is relevant to the Government's allegations of fraud in this case, as well as Joint Defendants' defenses." Mot. App. B. at 28. The Special Master recommends that the second paragraph of the document be released to Joint Defendants. The paragraph is relevant to Plaintiff's claims regarding addiction and less hazardous tobacco products, is not particularly personal and is not likely to be available from other sources.

8. PRA171-4375-4375 [CD 127]

"This document is a September 22, 1998 email from Cynthia Dailard to Joshua Gotbaum, with a copy to Cynthia A. Rice, discussing a proposed Department of Defense anti-tobacco plan and possible Presidential event related to that plan, and seeking information and advice from Mr. Gotbaum about these matters." Rice Decl. at 77. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to adoption of the DOD plan and whether the Administration REDACTED, and deliberative in that it reveals the questions of Ms. Dailard regarding REDACTED. Further, in camera review does not indicate that this document is relevant to Joint Defendants' claims of need.

9. PRA172-0046-0061 [CD 142]

"This document consists of two emails: (a) April 8, 1999, Mary L. Smith to Cynthia A. Rice, J. Eric Gould, Joshua Gotbaum, and Thomas J. Perrelli, forwarding for review and comment a draft response to letters from House members concerning the possible federal lawsuit against the tobacco industry; and (b) April 9, 1999, Ms. Rice to Ms. Smith, with copies to Mr. Gotbaum, Mr. Perrelli, and Mr. Gould, providing her opinion of the draft." Rice Decl. at 77-78. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege as the letters reflect presidential decisionmaking on the possible federal lawsuit against the tobacco industry. While the letters were to be signed by Bruce Reed, Assistant to the President for Domestic Policy, they refer to the position of the Administration on REDACTED REDACTED. PRA172-0047. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, especially because these letters were presumably sent to the House members.

10. PRA172-0687-0689 [CD 216]

"This document consists of three emails: (a) July 7, 1997, Bruce N. Reed to Elizabeth Drye and Jerold R. Mande, with a copy to Elena Kagan, seeking information from Mr. Mande about so-called reduced-risk cigarettes, posing several questions relating to smoking and socioeconomic status, and suggesting that the DPC have a discussion with a tobacco book author; (b) July 9, 1997, Mr. Mande to Mr. Reed, with copies to Ms. Kagan and Ms. Drye, responding in detail to Mr. Reed's questions and requests for information in (a); and (c) Mr. Reed to Paul J. Weinstein, Jr. and Mark J. Mazur, forwarding (a) and (b)." Rice Decl. at 78. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claim of presidential communications privilege. There is no indication that the communication calls ultimately for direct decisionmaking by the President. In re Sealed Case, 121 F.3d at 752. Further, the Special Master does not believe that the deliberative process should apply as the communication is largely factual in nature and the information appears to have been provided for educational purposes. The document would not "inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position." Coastal States Gas, 617 F.2d at 866.

11. PRA172-0883-0883 [CD 261]

"This document is a draft of an item being prepared for the weekly economic briefing for the President concerning a Treasury department study that estimates the economic costs of smoking on the U.S. economy." Gonzales Decl. Ex. A at 42-33. Mr. Ganzales states that the "paper is dated 2002 but that appears to be an artifact of wordprocessing as the item was most likely prepared in March or April 1998; see Challenged Document #262)." Id. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was prepared for the purpose of advising the President on a study regarding the economic costs of smoking on the U.S. economy. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial, or that similar information is not available from other sources with due diligence, especially because the Treasury Department study referred to is presumably public.

12. PRA172-0901-0901 [CD 262]

"This document is an April 2, 1998 email from Sarah J. Reber to David Cutler inquiring as to whether Mr. Cutler saw a Treasury Department paper estimating the economic costs of tobacco and offering her opinion as to the conclusions reached. (Ms. Reber also inquires about another paper that may or may not relate to tobacco.)" Gonzales Decl. Ex. A at 43. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "[T]he agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States Gas, 617 F.2d at 868. Plaintiff has not done so here and, thus, the document should not be protected by the privilege.

13. PRA172-1057-1057 [CD 278]

"This document contains three emails: (a) August 1, 2000, Barbara D. Woolley to J. Eric Gould, seeking information as to whether the President will make a statement concerning the upcoming release of the Surgeon General's report on tobacco; (b) August 2, 2000, Ms. Woolley to Andrea Kane, forwarding (a); and (c) August 18, 2000, Ms. Kane to Ms. Woolley, with a copy to Christina S. Ho, responding to (a) and (b) and informing Ms. Woolley as to DPC's recommendation as to whether there will be a Presidential statement." Gonzales Decl. Ex. A at 43; Rice Decl. at 78. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The email does not appear to disclose substantive information apart from the information provided in the declarations of Mr. Gonzales and Ms. Rice. Thus, there is no indication that disclosure "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." Formaldehyde Institute v. DHHS, 889 F.2d 1118, 1122 (D.C. Cir. 1989) (quotation omitted).

14. PRA172-1114-1115 [CD 286]

"This document consists of four emails: (a) August 2, 2000, Andrea Kane to Bill Hall, with a copy to Christina S. Ho, asking whether the HHS Household Drug Survey includes certain tobacco-related information; (b) August 3, 2000, Mr. Hall to Ms. Kane, with a copy to Ms. Ho, responding to (a); (c) August 4, 2000, Ms. Ho to Mr. Hall (the author and addressee information does not actually appear in this document) providing certain language to be used by HHS speechwriters concerning tobacco control efforts; and (d) August 4, 2000, Mr. Hall to Ms. Ho, with a copy to Ms. Kane, thanking her for (c)." Gonzales Decl. Ex. A at 43; Rice Decl. at 78. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because Ms. Ho provides proposed language to be used by HHS speechwriters concerning tobacco control efforts. Further, the Special Master does not believe that Joint Defendants can show need for the document because, as language for REDACTED REDACTED, the same or similar information is likely available from other public sources.

15. PRA172-1210-1210 [CD 293]

"This document is an August 8, 2000 email from Christina S. Ho to Andrea Kane, relaying information received from HHS concerning a Surgeon General's report on tobacco, including whether they want particular statutory language relating to expenditure of the funds." Rice Decl. at 79. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "[T]he agency has the burden of establishing what deliberative process is involved, and the role played by the documents in issue in the course of that process." Coastal States Gas, 617 F.2d at 868. Plaintiff has not done so here and, thus, the document should not be protected by the privilege.

16. PRA172-1604-1605 [CD 306]

"The withheld portion of this document contains two August 3, 2000 emails: (a) Andrea Kane to Anna Richter, with a copy to Christina S. Ho, seeking guidance as to whether to include a particular tobacco-related topic in a revised tobacco message; and (b) Ms. Richter to Ms. Kane, with a copy to Ms. Ho, responding to (a)." Rice Decl. at 79.²⁴ Plaintiff asserts the deliberative process privilege.

24 Plaintiff released page PRA172-1605. See Reply Ex. 1 (8/7/03 Letter from M. Burrell to N. Nierengarten).

The Special Master recommends that the Court sustain the claim of privilege for page PRA172-1604. The document is predecisional to issuance of the "tobacco message" and deliberative in that it relays a question from Ms. Kane as to the content of the message. Further, in camera review does not indicate that the document is sufficiently relevant to Joint Defendants' claims of need as it does not substantively discuss the tobacco-related topic.

17. PRA172-1639-1641 [CD 309]

"This document contains six August 2, 2000 emails discussing the preparation of a statement by the President for the 11th World Conference on Tobacco or Health: (a) from Eileen P. McCaughey to Anna Richter, forwarding the proposed draft statement and requesting review by the White House; (b) Ms. Richter to Andrea Kane and Christina S. Ho, forwarding (a), requesting their review, and asking whether HHS should review the proposed statement; (c) Ms. Kane to Ms. Richter, with a copy to Ms. Ho, responding to (b); (d) Ms. Richter to Ms. Kane, with a copy to Ms. Ho, asking who should contact Ripley Forbes at HHS; (e) Ms. Ho to Ms. Richter, responding to (d) and giving her preliminary comments on the proposed draft; and (f) Ms. Richter to Ms. Ho, asking for contact information for Mr. Forbes." Rice Decl. at 79. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level DPC members for the purpose of advising the President on the content of a speech he would give at the 11th World Conference on Tobacco or Health. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial or that similar information is not available from other sources with due diligence, as the actual speech would have been public.

18. PRA172-1646-1647 [CD 312]

"This document is the follow-up to Challenged Document #309. It contains two emails: (a) August 2, 2000, Christina S. Ho to Ripley Forbes, with a copy to Anna Richter, transmitting the draft Presidential statement for the 11th World Conference on Tobacco or Health for Mr. Forbes' review; and (b) August 3, 2000 from Anna Richter to Mr. Forbes, with a copy to Ms. Ho, reminding him that the DPC needs his comments." Rice Decl. at 80. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege for the same reasons given for Challenged Document #309, notwithstanding Joint Defendants' claims of need.

19. PRA172-1714-1714 [CD 319]

"This document is a September 24, 1996 email from Tracy A. Bobowick to Jennifer Palmieri seeking assistance in getting a named White House official to review tobacco-related letters." Rice Decl. at 80. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. The document is not deliberative of agency policy; instead, the communication relates to ministerial efforts in requesting assistance in getting review of tobacco-related letters: REDACTED REDACTED. PRA172-1714.

20. PRA172-1721-1721 [CD 320]

"This document is a July 8, 1996 email from Holly Carver to Marilyn Yager and Barbara D. Woolley, with a copy to Lee A. Satterfield, seeking information on how the President will address a tobacco issue when visiting North Carolina. (The issue is not identified.)" Rice Decl. at 80. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court overrule the claims of presidential communications and deliberative process privileges. The email was not solicited or received for the purpose of advising the President. Instead, the document relays that REDACTED REDACTED. PRA172-1721. In addition, the document is not "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866.

21. PRA172-1767-1767 [CD 323]

"This document is an August 22, 1996 email from Carol H. Rasco to Dennis Burke, with a copy to Elizabeth E. Drye, providing instructions for using data on cigarettes from Joseph Califano in an upcoming President's speech, and seeking information as to whether Mr. Califano will be attending an upcoming tobacco-related event." Rice Decl. at 80. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional to the development of the President's speech and deliberative in that Ms. Rasco expresses her opinion that REDACTED REDACTED. PRA172-1767. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

22. PRA172-1769-1769 [CD 324]

"This document is a May 22, 1996 email from Jennifer M. O'Connor to Seth E. Masket providing edits to a proposed letter from the President concerning smoking." Rice Decl. at 81. Plaintiff asserts the presidential communications and deliberative process privileges.

The Special Master recommends that the Court sustain the claim of presidential communications privilege. The document was solicited and received by high-level WHO advisors who have the responsibility for providing advice to the President on smoking issues, and the discussions relate specifically to a letter to be sent by the President. The document is presumptively privileged, and the Special Master does not believe that Joint Defendants have shown that the document likely contains evidence directly relevant to the issues that are expected to be central to the trial²⁵ or that similar information is not available from other sources with due diligence.

25 Joint Defendants contend that "[t]o the extent this document discusses the reasons why people smoke, awareness of the health risks associated with smoking, addiction, or cessation, this document would be relevant to the claims and defenses in this action." Mot. App. B at 28. This document discusses none of these issues.

23. PRA172-1864-1864 [CD 335]

"This document is a June 27, 1996 email from Julia Moffett to Jennifer M. O'Connor, with a copy to Shana E. Tesler, providing her suggestion for a meeting on tobacco to discuss strategy." Rice Decl. at 81. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. As noted previously, 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., 617 F.2d at 866. None of these purposes are served by protecting this document from discovery.

24. PRA172-2485-2487 [CD 371]

"This document contains two March 2, 1998 emails: (a) Sarah A. Bianchi to Paul A. Tuchman, forwarding a paper with statistics relating to tobacco-related diseases, tobacco and children, and the economic burden of tobacco for possible use in Presidential video scripts; and (b) Mr. Tuchman to Jordan Tamagni, forwarding (a) and characterizing Ms. Bianchi's document." Rice Decl. at 81. Plaintiff asserts the presidential communications and deliberative process privileges.²⁶

26 Plaintiff released pages PRA172-2486-2487. See Reply Ex. 1 (8/7/03 Letter from M. Burrell to N. Nierengarten).

The Special Master recommends that the Court overrule the claim of presidential communications privilege. The emails contain statistics for possible use in a Presidential video script. There is no indication that the document was authored or received to formulate advice to the President or reflects presidential decisionmaking or deliberations.

The Special Master further recommends that the Court overrule the claim of deliberative process privilege. The two emails are neither "recommendatory in nature" or "a draft of what will become a final document," or "deliberative in nature, weighing the pros and cons of agency adoption of one viewpoint or another." Coastal States Gas, 617 F.2d at 866. Thus, the emails should not be entitled to protection.

25. PRA172-2557-2557 [CD 377]

"This document contains two February 11, 1998 emails: (a) Lowell A. Weiss to Jeffrey M. Smith, responding to a request for information about the preparation of a paper regarding tobacco money and research; and (b) Mr. Smith to Mr. Weiss, acknowledging (a)." Rice Decl. at 81. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document was generated prior to the paper regarding tobacco money and research and deliberative in that the document reveals the give-and-take of the consultative process concerning REDACTED REDACTED. PRA172-2557. Further, in camera review does not indicate that this document is relevant to Joint Defendants' claims of need.

26. PRA172-2595-2595 [CD 379]

"This document is included within Challenged Document #377." Rice Decl. at 82. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege for the same reasons given for Challenged Document #377, notwithstanding Joint Defendants' claims of need.

27. PRA172-2742-2742 [CD 396]

"This document is a September 10, 1997 email from Barry J. Toiv to Jeremy M. Gaines, with copies to Michael D. McCurry and Joseph P. Lockhart, discussing strategy for dealing with press inquiries about an upcoming Surgeon General report." Rice Decl. at 82. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "To fall within the deliberative process privilege, materials must bear on the formulation or exercise of agency policy-oriented judgment . . ." Petroleum Info. Corp., 976 F.2d at 1435 (emphasis in original). Plaintiff has not demonstrated how this email bears on the formulation or exercise of judgment concerning policy.

28. PRA172-2771-2771 [CD 398]

"This document is a March 2, 1998 email from Nanda Chitre to M. Suntum regarding a press question concerning tobacco companies." Rice Decl. at 82. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. There is no indication that this email, which is merely REDACTED REDACTED reveals the decisionmaking process of the agency.

29. PRA172-3041-3041 [CD 419]

"This document is a March 5, 1998 email from Cynthia A. Rice to Audrey T. Haynes, with a copy to Elena Kagan, providing DPC's recommendation concerning HHS Secretary Shalala's and the Administration's tobacco communications strategy." Rice Decl. at 82. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court overrule the claim of privilege. "[T]he 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 Corp., 815 F.2d at 1568. The email relays that REDACTED REDACTED. PRA172-3041. Plaintiff has not shown that this email reveals the decisionmaking process of the agency such that disclosure would undermine the ability of the agency to function.

30. PRA172-3475-3475 [CD 452]

"This document is an August 27, 1998 email from Cynthia Dailard to Cynthia A. Rice providing a status report on several tobacco issues, including concerning (a) Institute of Medicine's reaction to the suggestion to issue a report on tobacco; (b) a possible Executive Memorandum on tobacco counter-advertising; (c) efforts to ban underage smoking on federal lands; and (d) possible smoking cessation efforts." Rice Decl. at 82. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because it contains a status report on various tobacco issues and includes the personal views of the author on those proposals. Id. at 22. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

31. PRA172-3828-3828 [CD 476]

"This document is a January 15, 1998 email from Michael Cohen to Bruce N. Reed relating information he received about a possible change in a tobacco table and reminding Mr. Reed about making a change in a tobacco-related statement, including the reason for that change." Rice Decl. at 83. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain the claim of privilege. The document is predecisional and deliberative because the tobacco tables and related statements were in the process of being modified and Mr. Cohen discusses the proposed modifications. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need.

32. PRA172-3920-3926 [CD 488]

"This document consists of three emails discussing a Department of Defense antitobacco (smoking cessation) plan: (a) September 24, 1998, David H. Morrison to Joshua Gotbaum and Robert D. Kyle, with copies to Daniel N. Mendelson, Gina C. Mooers, Victoria A. Wachino, and Richard J. Turman, providing his views as to the proposed DoD plan and offering suggestions as to other steps DoD could take to discourage cigarette sales; (b) September 24, 1998, Joshua Gotbaum to Cynthia Dailard and Cynthia A. Rice, with copies to a group of OMB personnel, forwarding (a), providing OMB's views of the proposal, and requesting guidance from the DPC as to what steps OMB should take concerning the proposal; and (c) December 11, 1998, Ms. Rice to Mr. Morrison and Mr. Mendelson, with copies to a group of OMB personnel, responding to (b), providing DPC's views with respect to the proposal, seeking further information from OMB about funding the proposal, and forwarding an internal background paper DPC prepared concerning the smoking cessation proposal for the military." Rice Decl. at 83. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Pages PRA172-3922-3925 only contain unreadable hex dumps and are not protected. Pages PRA172-3920-3921 and 3926, however, reveal a proposed Department of Defense anti-tobacco (smoking cessation) plan and deliberations regarding that plan.

Joint Defendants contend that documents "pertaining to the government's support and promotion of the tobacco industry," including "the Government's long-standing support of domestic tobacco farmers, attempts by the Government to open and expand foreign markets for domestic tobacco products, and the United States' subsidy and promotion of cigarette sales to military personnel," "are centrally 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,' ` in pari delicto,' and `participation in a RICO enterprise.'" Mot. App. B at 23. The Court has dismissed the equitable affirmative defenses, however, and the document does not pertain to the "government's support and promotion of the tobacco industry."

33. PRA172 4013-4019 [CD 496]

"This document is a September 3, 1998 email from Cynthia A. Rice to Mary L. Smith and Thomas L. Freedman, with a copy to Cynthia Dailard, forwarding her proposals (`Tobacco — New Ideas') for tobacco: (a) tobacco counter-advertising (including the amount to be spent and how it should be spent); and (b) smoking cessation programs, with six specific proposals to be implemented in connection with the Administration's continued call for comprehensive tobacco legislation to stop children from smoking." Rice Decl. at 83. Plaintiff asserts the deliberative process privilege.

The Special Master recommends that the Court sustain in part the claim of privilege. Pages PRA172-4013-4017 only contain non-substantive transmittal information and a hex dump and are not protected by the privilege. Pages PRA172-4018-4019, however, are predecisional and deliberative because they reflect proposals for tobacco counter-advertising and smoking cessation programs. Further, in camera review does not indicate that the document is relevant to Joint Defendants' claims of need and the remaining claims and defenses in this litigation.

VI. Conclusion

The Special Master recommends that the Court grant in part and deny in part Joint Defendants' Motion to Compel consistent with the recommendations above.

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

ORDER # ____

GLADYS KESSLER, District Judge

Before this Court is Report and Recommendation #171 of the Special Master. Upon consideration of Report and Recommendation #171, and there being no objection thereto, it is this ____ day of _________, 2004:

ORDERED that Report and Recommendation #171 of the Special Master be and hereby is adopted; and it is

FURTHER ORDERED that Joint Defendants' Fourth Motion to Compel Certain Documents Listed on Plaintiff's Executive Office of the President and Presidential Records Act Privilege Logs be and hereby is granted in part and denied in part; and it is

FURTHER ORDERED that Plaintiff's privilege claims with respect to the following Challenged Documents be and hereby are deemed waived:

PRA171-2238-2239 [CD 30] PRA171-3472-3472 [CD 84] PRA172-0295-0295 [CD 160] PRA172-1761-1765 [CD 322] PRA172-2596-2598 [CD 380] PRA172-3549-3549 [CD 459]

and it is

FURTHER ORDERED that Plaintiff's claims of deliberative process privilege be and hereby are sustained with respect to the following pages of the following Challenged Documents:

PRA171-1897 [CD 5] PRA171-1904-1908 [CD 7] PRA171-1910-1926 [CD 9] PRA171-1927-1930 [CD 10] PRA171-2014-2015 [CD 14] PRA171-2072-2072 [CD 16] PRA171-2073-2073 [CD 17] PRA171-2074-2078 [CD 18] PRA171-2112-2112 [CD 21] PRA171-2187-2205 [CD 28] PRA171-2210-2210 [CD 29] PRA171-2264-2266 [CD 33] PRA171-2284-2285 [CD 34] PRA171-2334-2335 [CD 36] PRA171-2443-2444 [CD 41] PRA171-2529-2530 [CD 47] PRA171-2611-2612 [CD 52] PRA171-2631-2646 [CD 53] PRA171-2715-2715 [CD 58] PRA171-2773-2791 [CD 63] PRA171-2830-2856 [CD 65] PRA171-2881-2882 [CD 67] PRA171-2921-2946 [CD 68] PRA171-3000-3001 [CD 69] PRA171-3002-3003 [CD 70] PRA171-3007-3032 [CD 71] PRA171-3063-3064 [CD 73] PRA171-3067-3068 [CD 74] PRA171-3069-3069 [CD 75] PRA171-3152-3152 [CD 78] PRA171-3444-3444 [CD 83] PRA171-3640-3641 [CD 86] PRA171-3729-3729 [CD 88] PRA171-3730-3730 [CD 89] PRA171-3949-3949 [CD 93] PRA171-4025-4027 [CD 95] PRA171-4035-4037 [CD 96] PRA171-4039-4039 [CD 97] PRA171-4063-4063 [CD 99] PRA171-4081 [CD 102] PRA171-4087-4088 [CD 104] PRA171-4135-4135 [CD 108] PRA171-4136-4138 [CD 109] PRA171-4186-4186 [CD 114] PRA171-4187-4190 [CD 115] PRA171-4197-4231 [CD 117] PRA171-4233-4270 [CD 118] PRA171-4296-4296 [CD 120] PRA171-4342-4345 [CD 124] PRA171-4363-4374 [CD 126] PRA171-4375-4375 [CD 127] PRA171-4398-4399 [CD 129] PRA171-4458-4461 [CD 134] PRA171-4471-4475 [CD 136] PRA171-4559-4559 [CD 139] PRA172-0067-0068 [CD 143] PRA172-0069-0093 [CD 144] PRA172-0094-0096 [CD 145] PRA172-0115-0140 [CD 146] PRA172-0142 [CD 147] PRA172-0147-0148 [CD 150] PRA172-0151-0157 [CD 151] PRA172-0200-0204 [CD 153] PRA172-0205-0207 [CD 154] PRA172-0209-0210 [CD 155] PRA172-0249-0252 [CD 156] PRA172-0253-0254; 0256 [CD 157] PRA172-0288-0291 [CD 159] PRA172-0305 [CD 161] PRA172-0312 [CD 163] PRA172-0319-0323 [CD 164] PRA172-0332 [CD 165] PRA172-0337-0361 [CD 166] PRA172-0362-0381 [CD 167] PRA172-0417 [CD 173] PRA172-0419-0420 [CD 174] PRA172-0422 [CD 175] PRA172-0435-0436 [CD 179] PRA172-0441-0441 [CD 181] PRA172-0450-0450 [CD 184] PRA172-0456-0463 [CD 185] PRA172-0464-0471 [CD 186] PRA172-0484-0486 [CD 189] PRA172-0492-0495 [CD 190] PRA172-0498-0503 [CD 191] PRA172-0504-0505 [CD 192] PRA172-0515-0521 [CD 194] PRA172-0527-0531 [CD 195] PRA172-0532-0534 [CD 196] PRA172-0574 [CD 198] PRA172-0579-0596 [CD 200] PRA172-0611-0614 [CD 204] PRA172-0615-0616 [CD 205] PRA172-0620-0628 [CD 207] PRA172-0629-0629 [CD 208] PRA172-0630-0634 [CD 209] PRA172-0643-0647 [CD 210] PRA172-0648-0654 [CD 211] PRA172-0660-0661 [CD 212] PRA172-0662-0666 [CD 213] PRA172-0670-0670 [CD 215] PRA172-0690-0691 [CD 217] PRA172-0692-0692 [CD 218] PRA172-0693-0694 [CD 219] PRA172-0699-0699 [CD 220] PRA172-0704-0706 [CD 222] PRA172-0710-0711 [CD 224] PRA172-0717-0717 [CD 225] PRA172-0724-0725 [CD 226] PRA172-0727-0731 [CD 227] PRA172-0733-0733 [CD 228] PRA172-0735-0735 [CD 230] PRA172-0741-0742 [CD 231] PRA172-0743-0743 [CD 232] PRA172-0744-0744 [CD 233] PRA172-0745-0746 [CD 234] PRA172-0753-0753 [CD 238] PRA172-0774-0774 [CD 240] PRA172-0777-0777 [CD 241] PRA172-0778-0778 [CD 242] PRA172-0784-0784 [CD 243] PRA172-0785-0785 [CD 244] PRA172-0797-0797 [CD 246] PRA172-0840-0840 [CD 249] PRA172-0845 [CD 250] PRA172-0846-0848 [CD 250A] PRA172-0849-0849 [CD 251] PRA172-0856-0856 [CD 254] PRA172-0857-0857 [CD 255] PRA172-0859-0859 [CD 256] PRA172-0868-0868 [CD 257] PRA172-0880-0880 [CD 260] PRA172-0910 [CD 263] PRA172-0936-0936 [CD 265] PRA172-0937-0937 [CD 266] PRA172-0938; 0940-0941 [CD 267] PRA172-0959-0961 [CD 268] PRA172-0988-0991 [CD 270] PRA172-1083-1084 [CD 284] PRA172-1096-1097 [CD 285] PRA172-1114-1115 [CD 286] PRA172-1186-1186 [CD 292] PRA172-1496-1497 [CD 301] PRA172-1583-1583 [CD 303] PRA172-1604 [CD 306] PRA172-1710-1710 [CD 316] PRA172-1767-1767 [CD 323] PRA172-2083-2084 [CD 341] PRA172-2089-2090 [CD 343] PRA172-2255-2256 [CD 353] PRA172-2322-2322 [CD 359] PRA172-2360-2360 [CD 364] PRA172-2531-2531 [CD 373] PRA172-2535-2535 [CD 374] PRA172-2557-2557 [CD 377] PRA172-2595-2595 [CD 379] PRA172-2630-2630 [CD 383] PRA172-2756-2770 [CD 397] PRA172-2846 [CD 408] PRA172-2852-2852 [CD 409] PRA172-3125-3140 [CD 425] PRA172-3197-3198 [CD 427] PRA172-3201-3201 [CD 428] PRA172-3202; 3204 [CD 429] PRA172-3264-3264 [CD 433] PRA172-3286-3287 [CD 437] PRA172-3294-3295 [CD 439] PRA172-3445-3445 [CD 450] PRA172-3475-3475 [CD 452] PRA172-3481-3481 [CD 454] PRA172-3482-3482 [CD 455] PRA172-3607-3609 [CD 461] PRA172-3630-3675 [CD 464] PRA172-3696-3707 [CD 465] PRA172 3723-3724 [CD 468] PRA172-3790 [CD 469] PRA172-3796-3797 [CD 471] PRA172-3800-3801 [CD 473] PRA172-3828-3828 [CD 476] PRA172-3885-3886 [CD 484] PRA172-3920-3921; 3926 [CD 488] PRA172-3970-3974 [CD 492] PRA172 4018-4019 [CD 496]

and it is

FURTHER ORDERED that Plaintiff's claims of deliberative process privilege be and hereby are overruled with respect to the following pages of the following Challenged Documents:

PRA171-1896 [CD 5] PRA171-1899-1903 [CD 6] PRA171-1970-1970 [CD 12] PRA171-1980-1980 [CD 13] PRA171-2114-2119 [CD 22] PRA171-2132-2134 [CD 26] PRA171-2137-2150 [CD 27] PRA171-2186 [CD 28] PRA171-2510-2510 [CD 45] PRA171-2514-2514 [CD 46] PRA171-2561-2561 [CD 51] PRA171-2812-2822 [CD 64] PRA171-2857-2875 [CD 66] PRA171-3033-3051 [CD 72] PRA171-3348-3352 [CD 80] PRA171-3621-3621 [CD 85] PRA171-3671-3676 [CD 87] PRA171-3753-3758 [CD 90] PRA171-3834-3835 [CD 91] PRA171-3843-3843 [CD 92] PRA171-4080 [CD 102] PRA171-4086 [CD 104] PRA171-4232 [CD 118] PRA171-4285-4291 [CD 119] PRA171-4341 [CD 124] PRA171-4362 [CD 126] PRA171-4405-4406 [CD 130] PRA172-0007-0007 [CD 141] PRA172-0141 [CD 147] PRA172-0144-0144 [CD 149] PRA172-0198-0199 [CD 152] PRA172-0208 [CD 155] PRA172-0255 [CD 157] PRA172-0304 [CD 161] PRA172-0311 [CD 163] PRA172-0318 [CD 164] PRA172-0331 [CD 165] PRA172-0382-0382 [CD 168] PRA172-0390-0405 [CD 170] PRA172-0416 [CD 173] PRA172-0418 [CD 174] PRA172-0421 [CD 175] PRA172-0434 [CD 179] PRA172-0555-0570 [CD 197] PRA172-0687-0689 [CD 216] PRA172-0700-0700 [CD 221] PRA172-0751-0751 [CD 236] PRA172-0792-0792 [CD 245] PRA172-0829-0829 [CD 247] PRA172-0851-0851 [CD 252] PRA172-0869-0869 [CD 258] PRA172-0870-0870 [CD 259] PRA172-0901-0901 [CD 262] PRA172-0907-0909 [CD 263] PRA172-0939 [CD 267] PRA172-1057-1057 [CD 278] PRA172-1069-1069 [CD 280] PRA172-1075-1077 [CD 282] PRA172-1210-1210 [CD 293] PRA172-1383 [CD 299] PRA172-1662-1662 [CD 313] PRA172-1711-1711 [CD 317] PRA172-1712-1713 [CD 318] PRA172-1714-1714 [CD 319] PRA172-1721-1721 [CD 320] PRA172-1780-1781 [CD 325] PRA172-1786-1786 [CD 327] PRA172-1864-1864 [CD 335] PRA172-1872-1872 [CD 336] PRA172-2072-2073 [CD 339] PRA172-2114-2115 [CD 345] PRA172-2211-2211 [CD 351] PRA172-2259-2260 [CD 354] PRA172-2308-2308 [CD 358] PRA172-2353-2353 [CD 363] PRA172-2485 [CD 371] PRA172-2603-2603 [CD 381] PRA172-2618-2618 [CD 382] PRA172-2671-2671 [CD 387] PRA172-2708-2708 [CD 393] PRA172-2742-2742 [CD 396] PRA172-2771-2771 [CD 398] PRA172-2839-2839 [CD 407] PRA172-2844-2845 [CD 408] PRA172-2930-2935 [CD 414] PRA172-2989-2989 [CD 415] PRA172-3034-3034 [CD 418] PRA172-3041-3041 [CD 419] PRA172-3110-3110 [CD 422] PRA172-3123-3124 [CD 425] PRA172-3203 [CD 429] PRA172-3224-3224 [CD 430] PRA172-3514-3528 [CD 457] PRA172-3557 [CD 460] PRA172-3611-3614 [CD 462] PRA172-3628-3629 [CD 464] PRA172-3676-3695 [CD 465] PRA172 3725-3739 [CD 468] PRA172-3787-3789 [CD 469] PRA172-3799-3799 [CD 472] PRA172-3881-3884 [CD 484] PRA172-3907-3912 [CD 486] PRA172-3922-3925 [CD 488] PRA172-3955-3969 [CD 492] PRA172-3998-3998 [CD 494] PRA172 4013-4017 [CD 496]

and it is

FURTHER ORDERED that Plaintiff's claims of presidential communications privilege be and hereby are sustained for the following pages of the following Challenged Documents:

PRA171-1807-1808 [CD 1] PRA171-1890 [CD 2] PRA171-1894-1895 [CD 4] PRA171-1933-1935 [CD 11] PRA171-2120-2121 [CD 23] PRA171-2450 [CD 42] PRA171-2667 [CD 56] PRA171-3073-3085 [CD 76] PRA171-4023-4024 [CD 94] PRA171-4074 [CD 100] PRA171-4082-4084 [CD 103] [In part per RR #171] PRA171-4164 [CD 111] PRA171-4485-4494 [CD 137] PRA172-0046-0061 [CD 142] PRA172-0406-0409 [CD 171] PRA172-0667-0669 [CD 214] PRA172-0883-0883 [CD 261] PRA172-0994-0994 [CD 271] PRA172-1019-1025 [CD 272] PRA172-1028-1029 [CD 274] PRA172-1046-1048 [CD 276] PRA172-1262-1264 [CD 294] PRA172-1331-1332 [CD 297] PRA172-1544-1544 [CD 302] PRA172-1639-1641 [CD 309] PRA172-1646-1647 [CD 312] PRA172-1694-1694 [CD 314] PRA172-1698-1700 [CD 315] PRA172-1769-1769 [CD 324] PRA172-1799-1799 [CD 329] PRA172-1827-1827 [CD 332] PRA172-1897-1905 [CD 337] PRA172-1952-1956 [CD 338] PRA172-2085-2086 [CD 342] PRA172-2192-2194 [CD 349] PRA172-2209-2209 [CD 350] PRA172-2244-2244 [CD 352] PRA172-2271-2272 [CD 355] PRA172-2283-2290 [CD 356] PRA172-2323-2323 [CD 360] PRA172-2428 [CD 365] PRA172-2437 [CD 366] PRA172-2440 [CD 367] PRA172-2454-2455 [CD 369] PRA172-2484 [CD 370] PRA172-2490 [CD 372] PRA172-2794-2794 [CD 402] PRA172-3273-3273 [CD 435] PRA172-3282-3282 [CD 436] PRA172-3357-3357 [CD 445] PRA172-3381; 3397-3400 [CD 446] PRA172-3436 [CD 448] PRA172-3529-3543 [CD 458] PRA172-3615-3617 [CD 463] PRA172-3795 [CD 470] PRA172-3846-3846 [CD 478] PRA172-3856-3856 [CD 481] PRA172-3880 [CD 483] PRA172-3913 [CD 487] PRA172-3999-3999 [CD 495]

and it is

FURTHER ORDERED that Plaintiff's claims of presidential communications privilege be and hereby are overruled with respect to the following pages of the following Challenged Documents:

PRA171-1889 [CD 2] PRA171-1893 [CD 4] PRA171-1980-1980 [CD 13] PRA171-2137-2150 [CD 27] PRA171-2210-2210 [CD 29] PRA171-2449 [CD 42] PRA171-2510-2510 [CD 45] PRA171-2561-2561 [CD 51] PRA171-2666 [CD 56] PRA171-3072 [CD 76] PRA171-3348-3352 [CD 80] PRA171-3444-3444 [CD 83] PRA171-3621-3621 [CD 85] PRA171-3671-3676 [CD 87] PRA171-3753-3758 [CD 90] PRA171-4039-4039 [CD 97] PRA171-4063-4063 [CD 99] PRA171-4073 [CD 100] PRA171-4135-4135 [CD 108] PRA171-4163 [CD 111] PRA172-0198-0199 [CD 152] PRA172-0200-0204 [CD 153] PRA172-0205-0207 [CD 154] PRA172-0208-0210 [CD 155] PRA172-0249-0252 [CD 156] PRA172-0450-0450 [CD 184] PRA172-0687-0689 [CD 216] PRA172-1721-1721 [CD 320] PRA172-1896 [CD 337] PRA172-1951 [CD 338] PRA172-2072-2073 [CD 339] PRA172-2114-2115 [CD 345] PRA172-2259-2260 [CD 354] PRA172-2425-2427 [CD 365] PRA172-2433-2436 [CD 366] PRA172-2438-2439 [CD 367] PRA172-2452-2453 [CD 369] PRA172-2482-2483 [CD 370] PRA172-2485 [CD 371] PRA172-2488-2489 [CD 372] PRA172-2756-2770 [CD 397] PRA172-2844-2846 [CD 408] PRA172-3034-3034 [CD 418] PRA172-3123-3140 [CD 425] PRA172-3197-3198 [CD 427] PRA172-3201-3201 [CD 428] PRA172-3224-3224 [CD 430] PRA172-3286-3287 [CD 437] PRA172-3294-3295 [CD 439] PRA172-3382-3396 [CD 446] PRA172-3434-3435 [CD 448] PRA172-3514-3528 [CD 457] PRA172-3607-3609 [CD 461] PRA172-3611-3614 [CD 462] PRA172-3676-3707 [CD 465] PRA172-3793-3794 [CD 470] PRA172-3796-3797 [CD 471] PRA172-3878-3879 [CD 483] PRA172-3907-3912 [CD 486] PRA172-3914 [CD 487]

and it is

FURTHER ORDERED that Plaintiff's claim of attorney-client privilege be and hereby is sustained for PRA171-2321-2321 [CD 35]; and it is

FURTHER ORDERED that Plaintiff's claims of attorney-client privilege be and hereby are overruled with respect to PRA171-4025-4027 [CD 95]; PRA171-4035-4037 [CD 96]; and PRA171-4232-4270 [CD 118]; and it is

FURTHER ORDERED that Joint Defendants' need overcomes Plaintiff's claims of deliberative process privilege and/or presidential communications privilege for the following pages of the following Challenged Documents:

PRA171-1904-1908 [CD 7] PRA171-2715-2715 [CD 58] PRA171-3152-3152 [CD 78] PRA171-4063-4063 [CD 99] [In part per RR #171] PRA171-4342-4345 [CD 124] PRA171-4471 [CD 136] [In Part per RR #171] PRA172-0094-0096 [CD 145] PRA172-0200-0204 [CD 153] PRA172-0205-0207 [CD 154] PRA172-0209-0210 [CD 155] PRA172-0249-0252 [CD 156] PRA172-0253-0254; 0256 [CD 157] PRA172-0484-0486 [CD 189] PRA172-0498-0503 [CD 191] PRA172-0504-0505 [CD 192] PRA172-0519 [CD 194] PRA172-0529-0530 [CD 195] PRA172-0532-0534 [CD 196] PRA172-0611-0614 [CD 204] PRA172-0615-0616 [CD 205] PRA172-0664 [CD 213] PRA172-0730-0731 [CD 227] PRA172-0735-0735 [CD 230] [In Part per RR #171] PRA172-0741-0742 [CD 231] PRA172-0743-0743 [CD 232] PRA172-0744-0744 [CD 233] PRA172-0778-0778 [CD 242] PRA172-0785-0785 [CD 244] PRA172-0880-0880 [CD 260] PRA172-0988-0991 [CD 270] PRA172-1096-1097 [CD 285] PRA172-1186-1186 [CD 292] PRA172-1496-1497 [CD 301] PRA172-2531-2531 [CD 373] PRA172-2852-2852 [CD 409] [In Part per RR #171] PRA172-3796-3797 [CD 471]

and it is

FURTHER ORDERED that Plaintiff shall produce the following pages of the following Challenged Documents to Joint Defendants within five (5) days of the date of this Order:¹

PRA171-1889 [CD 2] PRA171-1893 [CD 4] PRA171-1896 [CD 5] PRA171-1899-1903 [CD 6] PRA171-1904-1908 [CD 7] PRA171-1970-1970 [CD 12] PRA171-1980-1980 [CD 13] PRA171-2114-2119 [CD 22] PRA171-2132-2134 [CD 26] PRA171-2137-2150 [CD 27] PRA171-2186 [CD 28] PRA171-2238-2239 [CD 30] PRA171-2449 [CD 42] PRA171-2510-2510 [CD 45] PRA171-2514-2514 [CD 46] PRA171-2561-2561 [CD 51] PRA171-2666 [CD 56] PRA171-2715-2715 [CD 58] PRA171-2812-2822 [CD 64] PRA171-2857-2875 [CD 66] PRA171-3033-3051 [CD 72] PRA171-3072 [CD 76] PRA171-3152-3152 [CD 78] PRA171-3348-3352 [CD 80] PRA171-3472-3472 [CD 84] PRA171-3621-3621 [CD 85] PRA171-3671-3676 [CD 87] PRA171-3834-3838 [CD 90] PRA171-3834-3835 [CD 91] PRA171-3843-3843 [CD 92] PRA171-4063-4063 [CD 99] [In part per RR #171] PRA171-4073 [CD 100] PRA171-4080 [CD 102] PRA171-4086 [CD 104] PRA171-4163 [CD 111] PRA171-4232 [CD 118] PRA171-4271-4291 [CD 119] PRA171-4341-4345 [CD 124] PRA171-4362 [CD 126] PRA171-4405-4406 [CD 130] PRA171-4471 [CD 136] [In Part per RR #171] PRA172-0007-0007 [CD 141] PRA172-0094-0096 [CD 145] PRA172-0141 [CD 147] PRA172-0144-0144 [CD 149] PRA172-0198-0199 [CD 152] PRA172-0200-0204 [CD 153] PRA172-0205-0207 [CD 154] PRA172-0208-0210 [CD 155] PRA172-0249-0252 [CD 156] PRA172-0253-0256 [CD 157] PRA0295-0295 [CD 160] PRA172-0304 [CD 161] PRA172-0311 [CD 163] PRA172-0318 [CD 164] PRA172-0331 [CD 165] PRA172-0382-0382 [CD 168] PRA172-0390-0405 [CD 170] PRA172-0416 [CD 173] PRA172-0418 [CD 174] PRA172-0421 [CD 175] PRA172-0434 [CD 179] PRA172-0484-0486 [CD 189] PRA172-0498-0503 [CD 191] PRA172-0504-0505 [CD 192] PRA172-0519 [CD 194] PRA172-0529-0530 [CD 195] PRA172-0532-0534 [CD 196] PRA172-0555-0570 [CD 197] PRA172-0611-0614 [CD 204] PRA172-0615-0616 [CD 205] PRA172-0664 [CD 213] PRA172-0687-0689 [CD 216] PRA172-0700-0700 [CD 221] PRA172-0730-0731 [CD 227] PRA172-0735-0735 [CD 230] [In Part per RR #171] PRA172-0741-0742 [CD 231] PRA172-0743-0743 [CD 232] PRA172-0744-0744 [CD 233] PRA172-0751-0751 [CD 236] PRA172-0778-0778 [CD 242] PRA172-0785-0785 [CD 244] PRA172-0792-0792 [CD 245] PRA172-0829-0829 [CD 247] PRA172-0851-0851 [CD 252] PRA172-0869-0869 [CD 258] PRA172-0870-0870 [CD 259] PRA172-0880-0880 [CD 260] PRA172-0901-0901 [CD 262] PRA172-0907 [CD 263] PRA0987-0991 [CD 270] PRA172-1057-1057 [CD 278] PRA172-1069-1069 [CD 280] PRA172-1075-1077 [CD 282] PRA172-1096-1097 [CD 285] PRA172-1186-1186 [CD 292] PRA172-1210-1210 [CD 293] PRA172-1383 [CD 299] PRA172-1496-1497 [CD 301] PRA172-1662-1662 [CD 313] PRA172-1711-1711 [CD 317] PRA172-1712-1713 [CD 318] PRA172-1714-1714 [CD 319] PRA172-1721-1721 [CD 320] PRA172-1761-1765 [CD 322] PRA172-1780-1781 [CD 325] PRA172-1786-1786 [CD 327] PRA172-1864-1864 [CD 335] PRA172-1872-1872 [CD 336] PRA172-1896 [CD 337] PRA172-1951 [CD 338] PRA172-2072-2073 [CD 339] PRA172-2114-2115 [CD 345] PRA172-2211-2211 [CD 351] PRA172-2259-2260 [CD 354] PRA172-2308-2308 [CD 358] PRA172-2353-2353 [CD 363] PRA172-2425 [CD 365] PRA172-2433 [CD 366] PRA172-2438 [CD 367] PRA172-2452 [CD 369] PRA172-2482 [CD 370] PRA172-2485 [CD 371] PRA172-2488 [CD 372] PRA172-2531-2531 [CD 373] PRA172-2596-2598 [CD 380] PRA172-2603-2603 [CD 381] PRA172-2618-2618 [CD 382] PRA172-2671-2671 [CD 387] PRA172-2708-2708 [CD 393] PRA172-2742-2742 [CD 396] PRA172-2771-2771 [CD 398] PRA172-2839-2839 [CD 407] PRA172-2844 [CD 408] PRA172-2852-2852 [CD 409] [In Part per RR #171] PRA172-2930-2935 [CD 414] PRA172-2989-2989 [CD 415] PRA172-3034-3034 [CD 418] PRA172-3041-3041 [CD 419] PRA172-3110-3110 [CD 422] PRA172-3123 [CD 425] PRA172-3203 [CD 429] PRA172-3224-3224 [CD 430] PRA172-3434 [CD 448] PRA172-3514-3528 [CD 457] PRA172-3549-3549 [CD 459] PRA172-3557 [CD 460] PRA172-3611-3614 [CD 462] PRA172-3628 [CD 464] PRA172-3676 [CD 465] PRA172-3725 [CD 468] PRA172-3787 [CD 469] PRA172-3793 [CD 470] PRA172-3796-3797 [CD 471] PRA172-3799-3799 [CD 472] PRA172-3878 [CD 483] PRA172-3881 [CD 484] PRA172-3907-3912 [CD 486] PRA172-3914 [CD 487] PRA172-3955 [CD 492] PRA172-3998-3998 [CD 494] PRA172-4013 [CD 496]

1 The Court has not ordered production of any pages found not to be privileged containing only document identification numbers, "hex dumps" or blank pages.

APPENDIX A: FOURTH EOP/PRA DOCUMENT LIST

No. Bates No. Privilege(s) Recommendation Need Notes Claimed 1 PRA171-1807-1808 PC / DP PC — Sustain No 2 PRA171-1889-1890 PC / DP PC — Sustain: 1890 No Overrule: 1889 3 PRA171-1891-1892 Withdrawn ---------------- ------ 4 PRA171-1893-1895 PC / DP PC — Sustain: 1894-1895 No Overrule: 1893 5 PRA171-1896-1897 DP Sustain: 1897 No Overrule: 1896 6 PRA171-1899-1903 DP Overrule ------ 7 PRA171-1904-1908 DP Sustain Yes 8 PRA171-1909-1909 Withdrawn ---------------- ------ 9 PRA171-1910-1926 DP Sustain No 10 PRA171-1927-1930 DP Sustain No 11 PRA171-1933-1935 PC / DP PC — Sustain No 12 PRA171-1970-1970 DP Overrule ------ 13 PRA171-1980-1980 PC / DP Overrule ------ 14 PRA171-2014-2015 DP Sustain No 15 PRA171-2055-2055 Withdrawn ---------------- ------ 16 PRA171-2072-2072 DP Sustain No 17 PRA171-2073-2073 DP Sustain No 18 PRA171-2074-2078 DP Sustain No 19 PRA171-2108-2108 Withdrawn ---------------- ------ 20 PRA171-2109-2110 Withdrawn ---------------- ------ 21 PRA171-2112-2112 DP Sustain No 22 PRA171-2114-2119 DP Overrule ------ 23 PRA171-2120-2121 PC / DP PC — Sustain No 24 PRA171-2125-2126 Withdrawn ---------------- ------ 25 PRA171-2128-2128 Withdrawn ---------------- ------ 26 PRA171-2132-2134 DP Overrule ------ 27 PRA171-2137-2150 PC / DP Overrule ------ 28 PRA171-2186-2205 DP Sustain: 2187-2205 No Overrule: 2186 29 PRA171-2210-2210 PC / DP PC — Overrule No DP — Sustain 30 PRA171-2238-2239 PC / DP Waived ------ 31 PRA171-2249-2249 Withdrawn ---------------- ------ 33 PRA171-2264-2266 DP Sustain No 34 PRA171-2284-2285 DP Sustain No 35 PRA171-2321-2321 AC / DP AC — Sustain ------ 36 PRA171-2334-2335 DP Sustain No 39 PRA171-2410-2410 Withdrawn ---------------- ------ 40 PRA171-2412-2412 Withdrawn ---------------- ------ 41 PRA171-2443-2444 DP Sustain No 42 PRA171-2449-2450 PC / DP PC — Sustain: 2450 No Overrule: 2449 43 PRA171-2460-2461 Withdrawn ---------------- ------ 45 PRA171-2510-2510 PC / DP Overrule ------ 46 PRA171-2514-2514 DP Overrule ------ 47 PRA171-2529-2530 DP Sustain No 49 PRA171-2557-2558 Withdrawn ---------------- ------ 50 PRA171-2559-2560 Withdrawn ---------------- ------ 51 PRA171-2561-2561 PC / DP Overrule ------ 52 PRA171-2611-2612 DP Sustain No 53 PRA171-2631-2646 DP Sustain No 55 PRA171-2664-2665 Withdrawn ---------------- ------ 56 PRA171-2666-2667 PC / DP PC — Sustain: 2667 No Overrule: 2666 57 PRA171-2711-2711 Withdrawn ---------------- ------ 58 PRA171-2715-2715 DP Sustain Yes 59 PRA171-2730-2730 Withdrawn ---------------- ------ 60 PRA171-2738-2743 Withdrawn ---------------- ------ 61 PRA171-2744-2748 Withdrawn ---------------- ------ 62 PRA171-2749-2772 Withdrawn ---------------- ------ 63 PRA171-2773-2791 DP Sustain No 64 PRA171-2812-2822 DP Overrule ------ 65 PRA171-2829-2856 DP Sustain: 2830-2856 No Released 2829 66 PRA171-2857-2875 DP Overrule ------ 67 PRA171-2881-2882 DP Sustain No 68 PRA171-2921-2946 DP Sustain No 69 PRA171-3000-3001 DP Sustain No 70 PRA171-3002-3003 DP Sustain No 71 PRA171-3007-3032 DP Sustain No 72 PRA171-3033-3051 DP Overrule ------ 73 PRA171-3063-3064 DP Sustain No Released w/ redaction 74 PRA171-3067-3068 DP Sustain No 75 PRA171-3069-3069 DP Sustain No 76 PRA171-3072-3085 PC / DP PC — Sustain: 3073-3085 No Overrule: 3072 77 PRA171-3142-3145 Withdrawn ---------------- ------ 78 PRA171-3152-3152 DP Sustain Yes 80 PRA171-3348-3352 PC / DP Overrule ------ Released w/ redaction 81 PRA171-3365-3365 Withdrawn ---------------- ------ 82 PRA171-3434-3435 Withdrawn ---------------- ------ 83 PRA171-3444-3444 PC / DP PC — Overrule No DP — Sustain 84 PRA171-3472-3472 DP Waived ------ 85 PRA171-3621-3621 PC / DP Overrule ------ 86 PRA171-3640-3641 DP Sustain No 87 PRA171-3671-3676 PC / DP Overrule ------ 88 PRA171-3729-3729 DP Sustain No 89 PRA171-3730-3730 DP Sustain No 90 PRA171-3753-3758 PC / DP Overrule ------ 91 PRA171-3834-3835 DP Overrule ------ 92 PRA171-3843-3843 DP Overrule ------ 93 PRA171-3949-3949 DP Sustain No 94 PRA171-4023-4024 PC / DP PC — Sustain No 95 PRA171-4025-4027 AC / DP AC — Overrule No DP — Sustain 96 PRA171-4035-4037 AC / DP AC — Overrule No DP — Sustain 97 PRA171-4039-4039 PC / DP PC — Overrule No DP — Sustain 98 PRA171-4041-4041 Withdrawn ---------------- ------ 99 PRA171-4063-4063 PC / DP PC — Overrule In Part Need for DP — Sustain 2nd ¶ 100 PRA171-4073-4074 PC / DP PC — Sustain: 4074 No Overrule: 4073 101 PRA171-4077-4078 Withdrawn ---------------- ------ 102 PRA171-4080-4081 DP Sustain: 4081 No Overrule: 4080 103 PRA171-4082-4084 PC / DP PC — Sustain: 4082-4084 No Released (redaction) 4084 w/ redaction 104 PRA171-4086-4088 DP Sustain: 4087-4088 No Overrule: 4086 105 PRA171-4094-4096 Withdrawn ---------------- ------ 106 PRA171-4113-4119 Withdrawn ---------------- ------ 108 PRA171-4135-4135 PC / DP PC — Overrule No DP — Sustain 109 PRA171-4136-4138 DP Sustain No 111 PRA171-4163-4164 PC / DP PC — Sustain: 4164 No Overrule: 4163 112 PRA171-4165-4171 Withdrawn ---------------- ------ 113 PRA171-4180-4181 Withdrawn ---------------- ------ 114 PRA171-4186-4186 DP Sustain No 115 PRA171-4187-4190 DP Sustain No 116 PRA171-4195-4196 Withdrawn ---------------- ------ 117 PRA171-4197-4231 DP Sustain No 118 PRA171-4232-4270 AC / DP AC — Overrule No DP — Sustain: 4233-4270 Overrule: 4232 119 PRA171-4271-4291 DP Overrule: 4285-4291 ------ Released 4271-4284 120 PRA171-4296-4296 DP Sustain No 121 PRA171-4299-4300 Withdrawn ---------------- ------ 124 PRA171-4341-4345 DP Sustain: 4342-4345 Yes Overrule: 4341 126 PRA171-4362-4374 DP Sustain: 4363-4374 No Overrule: 4362 127 PRA171-4375-4375 DP Sustain No 128 PRA171-4383-4391 Withdrawn ---------------- ------ 129 PRA171-4398-4399 DP Sustain No 130 PRA171-4405-4406 DP Overrule redaction on ------ Released w/ 4405 redaction 131 PRA171-4422-4423 Withdrawn ---------------- ------ 134 PRA171-4458-4461 DP Sustain No 136 PRA171-4471-4475 DP Sustain In Part Need for last QA on 4471 137 PRA171-4485-4494 PC / DP PC — Sustain No 138 PRA171-4551-4554 Withdrawn ---------------- ------ 139 PRA171-4559-4559 DP Sustain No 140 PRA172-0002-0002 Withdrawn ---------------- ------ 141 PRA172-0007-0007 DP Overrule ------ 142 PRA172-0046-0061 PC / DP PC — Sustain No 143 PRA172-0067-0068 DP Sustain No 144 PRA172-0069-0093 DP Sustain No 145 PRA172-0094-0096 DP Sustain Yes 146 PRA172-0115-0140 DP Sustain No 147 PRA172-0141-0142 DP Sustain: 0142 No Overrule: 0141 149 PRA172-0144-0144 DP Overrule ------ 150 PRA172-0147-0148 DP Sustain No 151 PRA172-0151-0157 DP Sustain No 152 PRA172-0198-0199 PC / DP Overrule ------ 153 PRA172-0200-0204 PC / DP PC — Overrule Yes DP — Sustain 154 PRA172-0205-0207 PC / DP PC — Overrule Yes DP — Sustain 155 PRA172-0208-0210 PC / DP PC — Overrule Yes DP — Sustain: 0209-0210 Overrule: 0208 156 PRA172-0249-0252 PC / DP PC — Overrule Yes DP — Sustain 157 PRA172-0253-0256 DP Sustain: 0253-0254; 0256 Yes Overrule: 0255 158 PRA172-0284-0284 Withdrawn ---------------- ------ 159 PRA172-0288-0291 DP Sustain No 160 PRA172-0295-0295 DP Waived ------ 161 PRA172-0304-0305 DP Sustain: 0305 No Overrule: 0304 162 PRA172-0306-0307 Withdrawn ---------------- ------ 163 PRA172-0311-0312 DP Sustain: 0312 No Overrule: 0311 164 PRA172-0318-0323 DP Sustain: 0319-0323 No Overrule: 0318 165 PRA172-0331-0332 DP Sustain: 0332 No Overrule: 0331 166 PRA172-0337-0361 DP Sustain No 167 PRA172-0362-0381 DP Sustain No 168 PRA172-0382-0382 DP Overrule ------ 169 PRA172-03850385 Withdrawn ---------------- ------ 170 PRA172-0390-0405 DP Overrule ------ 171 PRA172-0406-0409 PC / DP PC — Sustain No 172 PRA172-0412-0412 Withdrawn ---------------- ------ 173 PRA172-0416-0417 DP Sustain: 0417 No Overrule: 0416 174 PRA172-0418-0420 DP Sustain: 0419-0420 No Overrule: 0418 175 PRA172-0421-0422 DP Sustain: 0422 No Overrule: 0421 179 PRA172-0434-0436 DP Sustain: 0435-0436 No Overrule: 0434 181 PRA172-0441-0441 DP Sustain No 182 PRA172-0444-0444 Withdrawn ---------------- ------ 183 PRA172-0449-0449 Withdrawn ---------------- ------ 184 PRA172-0450-0450 PC / DP PC — Overrule No DP — Sustain 185 PRA172-0456-0463 DP Sustain No 186 PRA172-0464-0471 DP Sustain No 187 PRA172-0472-0479 Withdrawn ---------------- ------ 189 PRA172-0484-0486 DP Sustain Yes 190 PRA172-0492-0496 DP Sustain No Released 0496 191 PRA172-0498-0503 DP Sustain Yes 192 PRA172-0504-0505 DP Sustain Yes 194 PRA172-0515-0521 DP Sustain In Part Need for 0519 195 PRA172-0527-0531 DP Sustain In Part Need for 0529-0530 196 PRA172-0532-0534 DP Sustain Yes 197 PRA172-0555-0570 DP Overrule ------ 198 PRA172-0573-0575 DP Sustain: 0574 No Released 0573, 0575 200 PRA172-0579-0596 DP Sustain No 204 PRA172-0611-0614 DP Sustain Yes 205 PRA172-0615-0616 DP Sustain Yes 207 PRA172-0620-0628 DP Sustain No 208 PRA172-0629-0629 DP Sustain No 209 PRA172-0630-0634 DP Sustain No 210 PRA172-0643-0647 DP Sustain No 211 PRA172-0648-0654 DP Sustain No 212 PRA172-0660-0661 DP Sustain No 213 PRA172-0662-0666 DP Sustain In Part Need for 0664 214 PRA172-0667-0669 PC / DP PC — Sustain No 215 PRA172-0670-0670 DP Sustain No 216 PRA172-0687-0689 PC / DP Overrule ------ 217 PRA172-0690-0691 DP Sustain No 218 PRA172-0692-0692 DP Sustain No 219 PRA172-0693-0694 DP Sustain No 220 PRA172-0699-0699 DP Sustain No 221 PRA172-0700-0700 DP Overrule ------ 222 PRA172-0704-0706 DP Sustain No 224 PRA172-0710-0711 DP Sustain No 225 PRA172-0717-0717 DP Sustain No 226 PRA172-0724-0725 DP Sustain No 227 PRA172-0727-0731 DP Sustain In Part Need for 0730-0731 228 PRA172-0733-0733 DP Sustain No 230 PRA172-0735-0735 DP Sustain In Part Release last para. 231 PRA172-0741-0742 DP Sustain Yes 232 PRA172-0743-0743 DP Sustain Yes 233 PRA172-0744-0744 DP Sustain Yes 234 PRA172-0745-0746 DP Sustain No 236 PRA172-0751-0751 DP Overrule ------ 238 PRA172-0753-0753 DP Sustain No 240 PRA172-0774-0774 DP Sustain No 241 PRA172-0777-0777 DP Sustain No 242 PRA172-0778-0778 DP Sustain Yes 243 PRA172-0784-0784 DP Sustain No 244 PRA172-0785-0785 DP Sustain Yes 245 PRA172-0792-0792 DP Overrule ------ 246 PRA172-0797-0797 DP Sustain No 247 PRA172-0829-0829 DP Overrule ------ 249 PRA172-0840-0840 DP Sustain No 250 PRA172-0845 DP Sustain No 250 PRA172-0846-0848 DP Sustain No 251 PRA172-0849-0849 DP Sustain No 252 PRA172-0851-0851 DP Overrule ------ 254 PRA172-0856-0856 DP Sustain No 255 PRA172-0857-0857 DP Sustain No 256 PRA172-0859-0859 DP Sustain No 257 PRA172-0868-0868 DP Sustain No 258 PRA172-0869-0869 DP Overrule ------ 259 PRA172-0870-0870 DP Overrule ------ 260 PRA172-0880-0880 DP Sustain Yes 261 PRA172-0883-0883 PC / DP PC — Sustain No 262 PRA172-0901-0901 DP Overrule ------ 263 PRA172-0907-0910 DP Sustain: 0910 No Overrule: 0907-0909 265 PRA172-0936-0936 DP Sustain No 266 PRA172-0937-0937 DP Sustain No 267 PRA172-0938-0941 DP Sustain: 0938; No 0940-0941 Overrule: 0939 268 PRA172-0959-0961 DP Sustain No 269 PRA172-0964-0965 Withdrawn ---------------- ------ 270 PRA172-0987-0991 DP Sustain: 0988-0991 Yes Released 0987 271 PRA172-0994-0994 PC / DP PC — Sustain No 272 PRA172-1019-1025 PC / DP PC — Sustain No Released 1023-1025 274 PRA172-1028-1029 PC / DP PC — Sustain No 276 PRA172-1046-1048 PC / DP PC — Sustain No 278 PRA172-1057-1057 DP Overrule ------ 280 PRA172-1069-1069 DP Overrule ------ 282 PRA172-1075-1077 DP Overrule ------ 284 PRA172-1083-1084 DP Sustain No 285 PRA172-1096-1097 DP Sustain Yes 286 PRA172-1114-1115 DP Sustain No 287 PRA172-1128-1130 Withdrawn ---------------- ------ 292 PRA172-1186-1186 DP Sustain Yes 293 PRA172-1210-1210 DP Overrule ------ 294 PRA172-1262-1264 PC / DP PC — Sustain No 295 PRA172-1302-1309 Withdrawn ---------------- ------ 297 PRA172-1331-1332 PC / DP PC — Sustain No 298 PRA172-1344-1348 Withdrawn ---------------- ------ 299 PRA172-1383-1386 DP Overrule: 1383 ------ Released 1384-1386 301 PRA172-1496-1497 DP Sustain Yes 302 PRA172-1544-1544 PC / DP PC — Sustain No 303 PRA172-1583-1583 DP Sustain No 306 PRA172-1604-1605 DP Sustain: 1604 No Released 1605 309 PRA172-1639-1641 PC / DP PC — Sustain No 312 PRA172-1646-1647 PC / DP PC — Sustain No 313 PRA172-1662-1662 DP Overrule ------ 314 PRA172-1694-1694 PC / DP PC — Sustain No 315 PRA172-1698-1700 PC / DP PC — Sustain No 316 PRA172-1710-1710 DP Sustain No 317 PRA172-1711-1711 DP Overrule ------ 318 PRA172-1712-1713 DP Overrule ------ 319 PRA172-1714-1714 DP Overrule ------ 320 PRA172-1721-1721 PC / DP Overrule ------ 322 PRA172-1761-1765 DP Waived ------ 323 PRA172-1767-1767 DP Sustain No 324 PRA172-1769-1769 PC / DP PC — Sustain No 325 PRA172-1780-1781 DP Overrule ------ 327 PRA172-1786-1786 DP Overrule ------ 328 PRA172-1791-1791 Withdrawn --------------- ------ 329 PRA172-1799-1799 PC / DP PC — Sustain No 332 PRA172-1827-1827 PC / DP PC — Sustain No 333 PRA172-1846-1849 Withdrawn --------------- ------ 334 PRA172-1857-1860 Withdrawn --------------- ------ 335 PRA172-1864-1864 DP Overrule ------ 336 PRA172-1872-1872 DP Overrule ------ 337 PRA172-1896-1905 PC / DP PC — Sustain: 1897-1905 No Overrule: 1896 338 PRA172-1951-1956 PC / DP PC — Sustain: 1952-1956 No Overrule: 1951 339 PRA172-2072-2073 PC / DP Overrule ------ 340 PRA172-2074-2075 Withdrawn ---------------- ------ 341 PRA172-2083-2084 DP Sustain No 342 PRA172-2085-2086 PC / DP PC — Sustain No 343 PRA172-2089-2090 DP Sustain No 344 PRA172-2107-2108 Withdrawn ---------------- ------ 345 PRA172-2114-2115 PC / DP Overrule ------ 348 PRA172-2188-2188 Withdrawn ---------------- ------ 349 PRA172-2192-2194 PC / DP PC — Sustain No 350 PRA172-2209-2209 PC / DP PC — Sustain No 351 PRA172-2211-2211 DP Overrule ------ 352 PRA172-2244-2244 PC / DP PC — Sustain No 353 PRA172-2255-2256 DP Sustain No 354 PRA172-2259-2260 PC / DP Overrule ------ 355 PRA172-2271-2272 PC / DP PC — Sustain No 356 PRA172-2283-2290 PC / DP PC — Sustain No 357 PRA172-2299-2299 Withdrawn ---------------- ------ 358 PRA172-2308-2308 DP Overrule ------ 359 PRA172-2322-2322 DP Sustain No 360 PRA172-2323-2323 PC / DP PC — Sustain No 363 PRA172-2353-2353 DP Overrule ------ 364 PRA172-2360-2360 DP Sustain No 365 PRA172-2425-2428 PC / DP PC — Sustain: 2428 No Overrule: 2425-2427 366 PRA172-2433-2437 PC / DP PC — Sustain: 2437 No Overrule: 2433-2436 367 PRA172-2438-2440 PC / DP PC — Sustain: 2440 No Overrule: 2438-2439 369 PRA172-2452-2455 PC / DP PC — Sustain: 2454-2455 No Overrule: 2452-2453 370 PRA172-2482-2484 PC / DP PC — Sustain: 2484 No Overrule: 2482-2483 371 PRA172-2485-2487 PC / DP Overrule: 2485 ------ Released 2486-2487 372 PRA172-2488-2490 PC / DP PC — Sustain: 2490 No Overrule: 2488-2489 373 PRA172-2531-2531 DP Sustain Yes 374 PRA172-2535-2535 DP Sustain No 377 PRA172-2557-2557 DP Sustain No 378 PRA172-2588-2591 Withdrawn ---------------- ------ 379 PRA172-2595-2595 DP Sustain No 380 PRA172-2596-2598 DP Waived ------ 381 PRA172-2603-2603 DP Overrule ------ 382 PRA172-2618-2618 DP Overrule ------ 383 PRA172-2630-2630 DP Sustain No 384 PRA172-2649-2652 Withdrawn ---------------- ------ 385 PRA172-2653-2655 Withdrawn ---------------- ------ 386 PRA172-2658-2660 Withdrawn ---------------- ------ 387 PRA172-2671-2671 DP Overrule ------ 388 PRA172-2678-2681 Withdrawn ---------------- ------ 389 PRA172-2682-2684 Withdrawn ---------------- ------ 390 PRA172-2685-2689 Withdrawn ---------------- ------ 393 PRA172-2708-2708 DP Overrule ------ 396 PRA172-2742-2742 DP Overrule ------ 397 PRA172-2756-2770 PC / DP PC — Overrule No DP — Sustain 398 PRA172-2771-2771 DP Overrule ------ 400 PRA172-2778-2782 Withdrawn ---------------- ------ 401 PRA172-2783-2785 Withdrawn ---------------- ------ 402 PRA172-2794-2794 PC / DP PC — Sustain No 403 PRA172-2795-2797 Withdrawn ---------------- ------ 407 PRA172-2839-2839 DP Overrule ------ 408 PRA172-2844-2846 PC / DP PC — Overrule No DP -- Sustain: 2846 Overrule: 2844-2845 409 PRA172-2852-2852 DP Sustain In Part Need for 1st QA 410 PRA172-2860-2866 Withdrawn ---------------- ------ 414 PRA172-2930-2935 DP Overrule ------ 415 PRA172-2989-2989 DP Overrule ------ 416 PRA172-2992-2994 Withdrawn ---------------- ------ 418 PRA172-3034-3034 PC / DP Overrule ------ 419 PRA172-3041-3041 DP Overrule ------ 420 PRA172-3051-3054 Withdrawn ---------------- ------ 422 PRA172-3110-3110 DP Overrule ------ 423 PRA172-3118-3119 Withdrawn ---------------- ------ 425 PRA172-3123-3140 PC / DP PC — Overrule No DP — Sustain: 3125-3140 Overrule: 3123-3124 427 PRA172-3197-3198 PC / DP PC — Overrule No DP — Sustain 428 PRA172-3201-3201 PC / DP PC — Overrule No DP — Sustain 429 PRA172-3202-3204 DP Sustain: 3202; 3204 No Overrule: 3203 430 PRA172-3224-3224 PC / DP Overrule ------ 433 PRA172-3264-3264 DP Sustain No 435 PRA172-3273-3273 PC / DP PC — Sustain No 436 PRA172-3282-3282 PC / DP PC — Sustain No 437 PRA172-3286-3287 PC / DP PC — Overrule No DP — Sustain 438 PRA172-3288-3293 Withdrawn ---------------- ------ 439 PRA172-3294-3295 PC / DP PC — Overrule No DP — Sustain 441 PRA172-3311-3313 Withdrawn ---------------- ------ 444 PRA172-3350-3352 Withdrawn ---------------- ------ 445 PRA172-3357-3357 PC / DP PC — Sustain No 446 PRA172-3381-3400 PC / DP PC — Sustain: 3381; No 3397-3400 Overrule: 3382-3396 448 PRA172-3434-3436 PC / DP PC — Sustain: 3436 No Overrule: 3434-3435 449 PRA172-3441-3444 Withdrawn ---------------- ------ 450 PRA172-3445-3445 DP Sustain No 452 PRA172-3475-3475 DP Sustain No 454 PRA172-3481-3481 DP Sustain No 455 PRA172-3482-3482 DP Sustain No 456 PRA172-3506-3513 Withdrawn ---------------- ------ 457 PRA172-3514-3528 PC / DP Overrule ------ Released w/ redaction 458 PRA172-3529-3543 PC / DP PC — Sustain No 459 PRA172-3549-3549 DP Waived ------ 460 PRA172-3557-3559 DP Overrule: 3557 ------ Released 3558-3559 461 PRA172-3607-3609 PC / DP PC — Overrule No DP — Sustain 462 PRA172-3611-3614 PC / DP Overrule ------ 463 PRA172-3615-3617 PC / DP PC — Sustain No 464 PRA172-3628-3675 DP Sustain: 3630-3675 No Overrule: 3628-3629 465 PRA172-3676-3707 PC / DP PC — Overrule No DP — Sustain: 3696-3707 Overrule: 3676-3695 468 PRA172 3723-3749 DP Sustain: 3723-3724 No Released Overrule: 3725-3739 3740-3749 469 PRA172-3787-3790 DP Sustain: 3790 No Overrule: 3787-3789 470 PRA172-3793-3795 PC / DP PC — Sustain: 3795 No Overrule: 3793-3794 471 PRA172-3796-3797 PC / DP PC — Overrule Yes DP — Sustain 472 PRA172-3799-3799 DP Overrule ------ 473 PRA172-3800-3801 DP Sustain No 476 PRA172-3828-3828 DP Sustain No 478 PRA172-3846-3846 PC / DP PC — Sustain No 481 PRA172-3856-3856 PC / DP PC — Sustain No 482 PRA172-3865-3876 Withdrawn --------------- ------ 483 PRA172-3878-3880 PC / DP PC — Sustain: 3880 No Overrule: 3878-3879 484 PRA172-3881-3886 DP Sustain: 3885-3886 No Overrule: 3881-3884 486 PRA172-3907-3912 PC / DP Overrule ------ 487 PRA172-3913-3914 PC / DP PC — Sustain: 3913 No Overrule: 3914 488 PRA172-3920-3926 DP Sustain: 3920-3921; 3926 No Overrule: 3922-3925 489 PRA172-3934-3938 Withdrawn --------------- ------ 491 PRA172-3946-3954 Withdrawn --------------- ------ 492 PRA172-3955-3974 DP Sustain: 3970-3974 No Overrule: 3955-3969 494 PRA172-3998-3998 DP Overrule ------ 495 PRA172-3999-3999 PC / DP PC — Sustain No 496 PRA172-4013-4019 DP Sustain: 4018-4019 No Overrule: 4013-4017 498 PRA172-4013-4019 Withdrawn --------------- ------ 499 PRA172-4053-4060 Withdrawn --------------- ------

APPENDIX B: FOURTH EOP/PRA CHALLENGE PARTICIPANTS

NAME POSITION Abrams, Janet B. WHO employee, EOP Adler, Devorah R. Assistant Director for Health Policy, DPC Alexander, Debra B. Director, Presidential Letters, Staff Secretary, WHO, EOP Anderson, Robert B. Economist, Economic Policy, OMB Attie, Eli G. Office of Deputy Chief of Staff for Communications, OVP Aylward, Patrick Program Examiner, Health/Personnel, OMB Barreto, Brian R. Deputy Chief of Staff, National Economic Council, EOP Bartholomew, Mark H. Computer Specialist, Applications Development and Support, Office of Administration, EOP Begala, Paul E. Counselor to the President, Chief of Staff, WHO, EOP Beier, David W. Chief Domestic Policy Advisor for the Vice President, OVP Benami, Jeremy D. WHO employee, EOP Bennett, Matthew L. Special Assistant for Intergovernmental Affairs, WHO, EOP Benos, Deanne E. DPC, EOP Berman, Elizabeth WHO employee, EOP Bianchi, Sarah A. Office of the Chief Domestic Policy Advisor to the Vice President, OVP Blank, Rebecca M. Chief Economist, Council of Economic Advisors, EOP Blickstein, Jill M. Program Examiner, Director's Office, OMB Bobowick, Tracy A. WHO employee, EOP Bosland, Julie T. Assistant Director of Presidential Scheduling, Scheduling, WHO, EOP Bowles, Erskine White House Chief of Staff Braun, Steven N. Director of Macroeconomic Forecasting, Council of Economic Advisor, EOP Brennan, Timothy Senior Economist, Council of Economic Advisors, EOP Bromberg, Emily Special Assistant to the President and Deputy Director of Intergovernmental Affairs, Intergovernmental Affairs, EOP Brophy, Susan A. Deputy Assistant to the President and Deputy Director of Legislative Affairs, Legislative Affairs, EOP Buchele, Libbie Office of the Secretary, HHS Burke, Dennis Senior Policy Analyst, DPC, EOP Burke, Kevin HHS employee Burson, Charles Chief of Staff and Counselor to the Vice President, OVP, EOP Bushmiller, Ann E. Associate Counsel to the President, WHO, EOP Cabrera, Alejandro G. Office of the Communications Director, OVP, EOP Cahill, Steven E. Policy Analyst, Budget Analysis and Systems, Budget Review, OMP, EOP Carver, Holly D. Special Assistant to the Director, Public Liaison, WHO, EOP Casella, Michael Chief, Economic Affairs Branch, National Security and International Affairs, OMB, EOP Cash, Lester Chief, Science and Regulatory Affairs Branch, Office of the Assistant Secretary for Management and Budget, HHS Casstevens, Kay Director of Legislative Affairs for the Vice President, OVP Chen, Yu Chin Council of Economic Advisors, EOP Chitre, Nanda Assistant Press Secretary, WHO, EOP Chough, Eugenia Assistant Director for Domestic Policy, DPC, EOP Chow, Barbara Associate Director, Education, Income Maintenance, and Labor Division, OMB, EOP Claxton, Gary HHS Assistant Secretary for Planning and Evaluation Clendenin, Barry T. Deputy Associate Director, Health/Personnel, OMB, EOP Clinton, William J. President, the White House Cohen, Michael Special Assistant to the President for Education Policy, DPC, EOP Collins, Daniel P. Associate Director of Research, Strategic Planning and Communications, Chief of Staff, WHO, EOP Connelly, Hugh T. Deputy Chief, Budget Analysis Branch, Budget Analysis and Systems, Budget Review, OMB, EOP Corcoran, John H. III WHO employee, EOP Crisci, Michelle Assistant to the Senior Advisor, Chief of Staff, WHO, EOP Crisci, Nicole C. WHO employee, EOP Cumby, Robert Office of Economic Policy, Treasury Department Cutler, Lynn G. Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, EOP Dailard, Cynthia Associate Director for Domestic Policy, DPC, EOP Dale, Suzanne Executive Assistant, Intergovernmental Affairs, WHO, EOP Damus, Robert G. General Counsel, OMB, EOP Davis, Caroline B. Program Examiner, Health/Personnel, OMB, EOP Defilippo, C. U.S. International Trade Commission Diringer, Elliot J. Associate Director for Communications, Council on Environmental Quality, EOP Dixon, Monica M. Deputy Chief of Staff, Office of the Vice President, OVP, EOP Dobson, Sean R. Advisor for Communications and Strategy, DPC, EOP Donenfeld, Toby Office of the Chief Domestic Policy Advisor for the Vice President, OVP Donohue, Mary Beth WHO employee, EOP Donovan, Kate P. Staff Assistant, Legislative Affairs, OMB, EOP Dorton, Patrick M. Special Assistant to the President and Communications Director, NEC, OPD Drye, Elizabeth Chief of Staff, DPC, EOP Dudley, Jennifer D. Special Assistant, Counsel to the President, WHO, EOP Duncan, John D., Jr. Special Advisor on International Economic Policy and Counselor, National Security Council, EOP DuVal, Frederick J. Deputy Assistant to the President and Deputy Director of Intergovernmental Affairs, WHO, White House Edlin, Aaron S. Senior Economist, Council of Economic Advisors, EOP Edmonds, James T. Special Assistant to the President and Presidential Speechwriter, Communications, WHO, EOP Ehlers, Karl Office of U.S. Trade Representative, EOP Ellis, Phil Treasury employee, Office of Economic Policy Emanuel, Rahm Senior Advisor to the President for Policy and Strategy and Executive Assistant to the Chief of Staff, WHO, EOP Emery, Jr., Richard P. Assistant Director, Budget review, OMB, EOP Emmett, Laura Policy Assistant, DPC, EOP Esquea, Jim R. Program Examiner, Health/Personnel, OMB, EOP Ewing, Patricia Deputy Chief of Staff for Communications, OVP, EOP Farkas, Jeffrey A. Program Examiner, Health/Personnel, OMB, EOP Fein, David B. Associate Counsel to the President, Office of the Counsel to the President, WHO, EOP Ferris, Christopher Public Affairs Specialist, Communications, OMB, EOP Finkelstein, Amy N. Council of Economic Advisors, EOP Foley, Martha C. Senior Legislative Counsel, Legislative Affairs, WHO, EOP Forbes, Jeffrey A. Deputy Assistant to the President and Deputy Director of Scheduling, WHO, EOP Forbes, Ripley Office of the Secretary, HHS Forshey, Jennifer M. Program Examiner, Health/Personnel, OMB Fortuna, Diana Associate Director for Welfare Reform, DPC, EOP Frankel, Jeffrey A. Member, Council of Economic Advisors, EOP Frederickson, Caroline R. Special Assistant to the President for Legislative Affairs, Legislative Affairs, WHO, EOP Freedman, Thomas L. Deputy Assistant to the President for Domestic Policy, DPC, EOP Fuglie, Keith O. Senior Economist, Council of Economic Advisors, EOP Furman, Jason Staff Economist, Council of economic Advisors, EOP Gaines, Jeremy M. Deputy Director of Press Advance, Press Secretary, WHO, EOP Garufi, Marc Program Examiner, Health/Personnel, OMB, EOP Gehrke, Michael WHO employee, EOP Gerardi, G. Treasury Department employee Gersten, Alexander N. WHO employee, EOP Gips, Donald H. Deputy Chief of Staff for Communications, OVP, EOP Glauber, Joe Chief Economist, USDA Glauthier, T.J. Associate Director, Natural Resources, Energy, and Science, OMB, EOP Glickman, Daniel Secretary, USDA Goldberg, Jason S Special Assistant to the Chief of Staff, WHO, EOP Gotbaum, Joshua Executive Associate Director, OMB, EOP Gould, J. Eric Associate Director for Domestic Policy, DPC, EOP Green, Julia R. Regional Media Coordinator, Press Secretary, WHO, EOP Green, Melissa G. Special Assistant, National Economic Council, OPD Gregoire, Courtney O. DPC, EOP Gribben, John Writer/Editor, Communications, OMB, EOP Grishkot, Vivian WHO, EOP employee Gruber, Jonathan D. Deputy Assistant Secretary, Treasury; later a consultant to the Administration Haas, Lawrence J. Communications Director for the Vice President, OVP, EOP Hale, John E. Policy Analyst, Office of National Drug Control Policy, EOP Hall, Bill HHS employee Hall, H. U.S. International Trade Commission Hanratty, Maria J. Council of Economic Advisors, EOP Harris, Jeffrey Consultant, VA Hart, John P. Deputy Assistant to the President for Intergovernmental Affairs, WHO, EOP Haun, David J. Chief, Justice Branch, General Government and Finance, OMB, EOP Haverkamp, Jennifer R. Assistant U.S. Trade Representative for Environment and Natural Resources, USTR, EOP Haynes, Audrey T. Special Counsel to the Vice President and Chief of Staff to Mrs. Gore, OVP, EOP Helms, Robert D. Branch Chief, Procurement, General Services Division, Office of Administration, EOP Hernreich, Nancy V. Deputy Assistant to the President and Director of Oval Office Operations, WHO, EOP Himler, Janet L. Program Examiner, Human Resources, OMB, EOP Ho, Christina S. Assistant Director for Domestic Policy, DPC, EOP Horwitz, Russell W. Special Assistant, National Economic Council, EOP Hunker, Mark WHO employee, EOP Hustead, Toni A. Chief, Veterans Affairs Branch, Health/Personnel, OMB Ibarra, Mickey Assistant to the President and Director of Governmental Affairs, WHO, White House Jacoby, Peter G. Special Assistant to the President and Senior Legislative Counsel for Legislative Affairs, Legislative Affairs, WHO, EOP Jasso-Rotunno, Cynthia M. Chief of Staff of Political Affairs, WHO, EOP Jennings, Christopher C. Deputy Assistant to the President for Health Policy, DPC, White House Jolin, Michele M. Chief of Staff, Council of Economic Advisors, EOP Jones, Ronald E. Legislative Analyst, Economics, OMB, EOP Kagan, Elena Deputy Assistant to the President for Domestic Policy, DPC, EOP Kane, Andrea Associate Director for Domestic Policy, DPC, EOP Kaplan, Jonathan A. Chief of Staff, National Economic Council, OPD, EOP Kasdin, Stuart R. Program Examiner, Natural Resources, Energy, and Science, OMB, EOP Katzen, Sally Deputy Assistant to the President for Economic Policy and Deputy Director, National Economic Council, OPD, EOP Kessler, David A., MD Commissioner, FDA, HHS Kieffer, Charles E. Acting Associate Director, Legislative Affairs, OMB, EOP Kirchgraber, Katherine Program Examiner, Health/Personnel, OMB Kitchen, John Treasury Department employee Klain, Ron Chief of Staff, OVP Konigsberg, Charles Assistant Director for Legislative Affairs, OMB, EOP Koop, C. Everett, MD Surgeon General, Public Health Service, HHS Korneman, Sanders D. Council of Economic Advisors, EOP Kountoupes, Lisa M. Special Assistant to the President for Legislative Affairs, WHO, EOP Kullman, Karin Assistant Director of Presidential Scheduling, Scheduling, WHO, EOP Lambrew, Jeanne Senior Health Policy Analyst, National Economic Council, EOP Lehane, Christopher S. Office of the Deputy Chief of Staff for Communications, OVP, EOP Levine, Philip B. Senior Economist, Council of Economic Advisors, EOP Lew, Jacob J. Director, OMB, EOP Lewis, Ann F. Assistant to the President and Director of Communications, WHO, EOP Lindsey, Bruce R. Assistant to the President and Deputy Counsel, WHO, EOP Liu, Eric P. Deputy Assistant to the President for Domestic Policy, DPC, EOP Livingston, Brooke B. Legislative Analyst, Legislative Affairs, OMB, EOP Locke, Patrick G. Policy Analyst, Budget Analysis Branch, Budget Review Division, OMB, EOP Lockhart, Joseph P. Assistant to the President and White House Press Secretary, WHO, EOP Long, Bruce D. Deputy Associate Director, VA, Health/Personnel, OMB, EOP Majestic, Elizabeth Centers for Disease Control, HHS Malanoski, Margaret A. Policy Analyst, Office of Information and Regulatory Affairs, OMB, EOP Maloney, Sean P. HHS employee Mande, Jerold R. Office of Science and Technology Policy detailed to Office of Vice President Marr, Charles R. Senior Advisor for Budget Policy, National Economic Council, OPD Martin, Tanya E. Associate Director for Education and Policy Planning, DPC, EOP Masket, Seth E. Writer, Presidential Letters, Staff Secretary, WHO, EOP Mathews, Sylvia Deputy Director, OMB, EOP Mayfield, Emory L. Special Assistant to the Deputy Director, Intergovernmental Affairs, WHO, EOP Mays, Cathy Executive Assistant to the Director, DPC, EOP Mazur, Mark Senior Director, National Economic Council, EOP McCaughey, Eileen P. HHS employee McClellan, Mark Economic Policy, Treasury McConnell, Bruce W. Chief, Information Policy and Technology Branch, Office of Information and Regulatory Affairs, OMB, EOP McCown, Gaynor R. Senior Policy Analyst, DPC, EOP McCurry, Michael D. Press Secretary, WHO, EOP McGee, Jennifer E. Duty Officer, NSC, EOP McGuire, Anne E. Special Assistant to the President for Cabinet Affairs, WHO, EOP McHugh, Lorraine Deputy Assistant to the President and Deputy Press Secretary for Media Affairs and Operations, Press Secretary, WHO, EOP McKiernan, Kathy Assistant Press Secretary, WHO, EOP Mellody, April Assistant Press Secretary, WHO, EOP Mendelson, Daniel N. Associate Director, Health/Personnel, OMB, EOP Miller, Mark E. Chief, Health Financing, Health/Personnel, OMB, EOP Min, Nancy-Ann Associate Director for Health and Personnel, OMB, EOP Minarik, Joseph J. Associate Director, Economic Policy, OMB, EOP Moffet, Julia Associate Director of Planning, Chief of Staff, WHO, EOP Moloney, Megan C. Director of Radio Services, Press Secretary, WHO, EOP Mooers, Gina C. Executive Assistant, Health/Personnel, OMB, EOP Moran, Kevin S. Special Assistant to the Chief of Staff, WHO, EOP Morrison, David H. Deputy Associate Director, National Security, National Security and International Affairs, OMB, EOP Munnell, Alicia H. Member, Council of Economic Advisors, EOP Murguia, Janet Deputy Assistant to the President and Deputy Director of Legislative Affairs, WHO, EOP Murr, James C. Assistant Director, Legislative Reference Division, OMB, EOP Nakagiri, Melany Program Examiner, Health/Personnel, OMB, EOP Newman, Elizabeth Special Assistant to the Press Secretary, WHO, EOP Norwood, Douglas A. Fiscal Economist, Budget Analysis and Systems, Budget Review, OMB, EOP O'Connor, Jennifer M. Special Assistant to the President, Office of the Chief of Staff, WHO, EOP Orszag, Peter R. Senior Economic Adviser, National Economic Council, EOP Palmieri, Jennifer M. Deputy Assistant to the President and Deputy Press Secretary for Operations, WHO, EOP Pate, Lesley A. DPC, EOP Patton, Devere R., Jr. Project Manager, Information Systems and Technology Division, Office of Administration, EOP Pellicci, Robert J. Legislative Analyst, Labor, Welfare, Personnel Branch, Legislative Reference Division, OMB, EOP Perrelli, Thomas J. Assistant to the Attorney General, Office of the Attorney General, Department of Justice Peterson, Ronald K. Chief, Resources, Defenses, International Branch, Legislative Affairs, OMB, EOP Pitcher, Matthew W. Writer, Presidential Letters, Staff Secretary, WHO, EOP Pitkin, Douglas Program Examiner, Transportation, Commerce, Justice, and Services, General Government and Finance, OMB, EOP Pizzuto, Jill M. Confidential Assistant, Human Resources, OMB, EOP Podesta, John Chief of Staff, WHO, EOP Quinn, Laura M. OVP, EOP Rabner, Nicole R. Associate Director for Domestic Policy, DPC, EOP Raines, Franklin D. Director, OMB, EOP Rasco, Carol H. Assistant to the Director for Domestic Policy and Director, DPC, EOP Ratcliff, Melissa B. Office of the Deputy Chief of Staff for Communications, OVP, EOP Reber, Sarah J. Research Assistant, Council of Economic Advisors, EOP Reed, Bruce N. Assistant to the President for Domestic Policy and Director, DPC Reilly, Thomas Chief, Health and Human Services Branch, Health/Personnel, OMB, EOP Rettman, Rosalyn J. Associate General Counsel for Budget, Office of General Counsel, OMB, EOP Ricci, Linda Associate Director, Communications, OMB, EOP Rice, Cynthia A. Special Assistant to the President for Domestic Policy, DPC, EOP Richter, Anna Assistant Director for Domestic Policy, DPC, EOP Robyn, Dorothy Special Assistant to the President for Economic Policy, National Economic Council, EOP Rosman, Adam L. WHO employee, EOP Rudd, Jeremy B. Senior Economist, Council of Economic Advisors, EOP Ruhm, Christopher J. Senior Economist, Council of Economic Advisors, EOP Sandill, Ravi K. Council of Economic Advisors, EOP Santesteban, Cristian J. Staff Economist, Council of Economic Advisors, EOP Satterfield, Lee Special Assistant to the President and Staff Director, Public Liaison, WHO, EOP Scholtz, Karl Treasury Department employee Schmidt, Christine HHS employee Schroeder, Ingrid M. Legislative Analyst, Economics, Science, General Government and Finance, OMB, EOP Scott, Andrew J. Program Examiner, Health/Personnel, OMB, EOP Seidl, III, Frank J. Program Examiner, Health/Personnel, OMB, EOP Seidlitz, Joseph E. Council of Economic Advisor, EOP Seidman, Ellen S. Special Assistant to the President for Economic Policy, National Economic Council, Office of Policy Development, EOP Shalala, Donna Secretary, HHS Shamir, Ruby Special Assistant to the Director of Communications, WHO, EOP Shapiro, Hal Scott Senior Advisor for International Economic Policy and Senior Counselor to the Director, OPD, EOP Sheketoff, Emily Labor employee Shimabukuro, Leanne Associate Director for Domestic Policy, DPC, EOP Siewert, Jake Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Silverman, Joshua Assistant Press Secretary, WHO, EOP Smith, Cynthia M. Program Examiner, Health/Personnel, OMB, EOP Smith, Jeffrey M. Executive Assistant to the Director for Policy and International Affairs, OSTP, EOP Smith, Mary L. Associate Director for Policy Planning, DPC, EOP Soto, Maria E. Special Assistant to the Director, Intergovernmental Affairs, WHO, EOP Sperling, Gene Director, National Economic Council, OPD Steel, Brian W. OVP, EOP Stern, Todd Assistant to the President for Special Projects, WHO, EOP Stone, Charles F. Chief Economist, Council of Economic Advisors, EOP Summers, Lawrence Secretary, Treasury Sunding, David L. Senior Economist, Council of Economic Advisors, EOP Suntum, M. WHO employee, EOP Tamagni, Jordan Special Assistant to the President and Presidential Speechwriter, Speechwriting, Communications, WHO, EOP Tanden, Neera Associate Director for Domestic Policy, DPC, EOP Tarplin, Rich Treasury employee Taylor, Wendy A. Policy Analyst, Office of Information and Regulatory Affairs, OMB Tesler, Shana E. Staff Assistant, Chief of Staff, WHO, EOP Thomas, David R. Deputy Director, Legislative Affairs, OVP, EOP Thompson, John E. Program Examiner, Justice Branch, Transportation, Commerce, Justice, and Services Division, OMB, EOP Toiv, Barry J. Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Treadway, James Michael Consulting Editor, Council of Economic Advisors, EOP Tuchmann, Paul A. Office of the Political Director, Chief of Staff, OVP, EOP Tumlinson, Anne E. Program Examiner, Health/Personnel, OMB, EOP Turman, Richard J. Chief, Health Programs and Services, Health/Personnel, OMB, EOP Wachino, Victoria A. Senior Adviser, Office of the Director, OMB, EOP Waldman, Michael Assistant to the President and Director of Speechwriting, Communications, WHO, EOP Walker, Christopher F. Special Assistant to the Director and Director of Congressional Correspondence and Messages, Legislative Affairs, WHO, EOP Warren, Wesley P. Chief of Staff, Council on Economic Quality, EOP Wasserman, Mark A. International Economist, Economic Policy, OMB Weinstein, Paul J., Jr. Special Assistant to the President for Domestic Policy and Chief of Staff, DPC, EOP Weiss, Amy Deputy Assistant to the President and Deputy Press Secretary, WHO, EOP Weiss, Lowell A. Special Assistant to the President and Presidential Speechwriter, WHO, EOP White, William G. Program Examiner, Health/Personnel, OMB, EOP White, William H., Jr. Special Assistant to the President for Intergovernmental Affairs, WHO, EOP Wilcox, David Treasury employee Winski, John OVP, EOP Woollen, Dawn V. Confidential Assistant to Executive Associate Director, OMB, EOP Woolley, Barbara D. Special Assistant to the President and Associate Director, Public Liaison, WHO, EOP Yager, Marilyn Deputy Assistant to the President and Deputy Director for Public Liaison, WHO, EOP Yellen, Janet L. Chair, Council of Economic Advisors, EOP