29 C.F.R. § 18.18 (2001). See also Fed. R. Civ. P. 33(b)(1-2) (stating that each interrogatory shall be answered under oath and the answers are to be signed by the person making them).

   Defense counsel signing and verifying answers to interrogatories on a corporate defendant's behalf is authorized by Fed. R. Civ. P. 33, and is not a gross departure from accepted practice. Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 508 (4th Cir. 1977). The language "any officer or agent" in Fed. R. Civ. P. 33, which is also present in 29 C.F.R. § 18.18(a), is construed to authorize answers by a party's attorney. See 8 Wright & Miller, Federal Practice & Procedure ¶ 2172, p. 538. In this case, Robin B. Allen, counsel of record for U.S. Environmental Protection Agency, failed to sign the verification at the end of Respondent's answers to Complainant's Request for Production of Documents. Robin Allen did verify Respondent's answers to Complainant's Interrogatories. Accordingly, I find nothing untoward about Respondent's attorney signing the verification to the answers to interrogatories, and I find it appropriate to allow Respondent until April 25, 2003, to submit an affidavit that the answers provided to Complainant's Requests for Production of Documents are true and correct and the documents provided thereto are true and correct copies as provided by agency officials.

2. Work Product and Attorney-Client Privilege

   Complainant contends that Respondent asserted privilege and thereby failed to answer interrogatories, but Respondent failed to provide a privilege log. Additionally, Complainant asserts Respondent failed to establish that the work product privilege applies to its discovery responses. The work-product doctrine provides an attorney with a zone of privacy where the attorney can work "free from unnecessary intrusion by opposing parties and their counsel." Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). The work product doctrine is broader than the attorney-client privilege. United States v. Nobles, 422 U.S. 225, 238 n.11, 95 S. CT 2160, 45 L. Ed. 2d 141 (1975). One seeking discovery of a work-product must show substantial need because the work product reflects the "mental impressions, conclusions, opinions or legal theories of an attorney." Fed. R. Civ. P. 26(b)(3) (2001). To show that the work product privilege applies, a party should demonstrate that: 1) information requested is either documents or otherwise tangible; (2) document was prepared in anticipation of litigation; and (3) document was prepared by or for party's representative; additionally, party must demonstrate that document was prepared principally or exclusively to assist in anticipated or ongoing litigation. Fed. R. Civ. P. 26(b)(5) (2002); Scakman v. Leggit, 920 F. Supp. 357, 266 (E. D. NY. 1996). The work product privilege should be asserted in a privilege log. Advanced Display Systems, Inc., v. Kent State University, 212 F.3d 1272, 1280 (5th Cir. 2000); In re Allen, 106 F.3d 582, 599 (4th Cir. 1997).

   "The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice." In re Grand Jury Subpoenas, 803 F.2d 493, 496 (9th Cir. 1986). The attorney-client privilege is limited to "only those disclosures - necessary to obtain informed legal advice - which might not have been made absent the privilege." Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 1577, 48 L. Ed. 2d 39 (1976). The party asserting the privilege has the burden of proof. In re Grand jury Investigation, 947 F.2d 1068, 1070 (9th Cir. 1992). To show that the attorney-client privilege attaches to discoverable information, the parties should demonstrate:

(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 on 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.

In re Allen, 106 F.3d 582, 600 (4th Cir. 1997).

   "A party that fails to submit a privilege log is deemed to waive the underlying privilege claim." In re Grand Jury Subpoena, 2001 WL 1356363, *9 (1st Cir. 2001). A privilege log should contain:

To properly demonstrate that a privilege exists, the privilege log should contain a brief description or summary of the contents of the documents, the date the document was prepared, the person or persons who prepared the document, the person to whom the document was directed, or for whom the document was prepared, the purpose in preparing the document, the privilege or privileges asserted with respect to the document, and how each element of the privilege is met as to that document. . . . The summary should be specific enough to permit the court or opposing counsel to determine whether the privilege asserted applies to that document.

Smith v. Dow Chemical Co. PPG et al., 173 F.R.D. 54, 57-58 (W.D. N.Y. 1997)(citations omitted).

   Respondent asserted the either the attorney-client privilege, the work product privilege, or both in response to the following Requests for Production of Documents and Interrogatories:

   Request for Production No. 3

3. Please produce all letters, reports, witness statements or writings, reports of interviews (302s), notebook, notes and memoranda, including official or unofficial E-mail or other paper or electronic documents, databases or paper records of any description sent or received, bearing Ms. Erickson?s name (and not sent to her or by her), without reference to any "records retention policy," due to Respondents? duty to preserve evidence since initiation of the original OSHA complaint.

Respondent's answer

   . . . . Emails that contain Regional Counsel's, Robin B. Allen, mental impressions, advice, and opinion regarding requests for advice on administrative leave/official time have been redacted consistent with the attorney/client privilege and work/produce privilege (found at enclosure N). . . .

   Request for Production No. 8

8. Please produce all search and finding aids, file indices, search terms, search memorandum and other documents allowing verification of the adequacy of Respondents' search for the foregoing documents.

Respondent's answer

   Respondent objects on the grounds that the information sought is . . .attorney work product . . . . Mr. Wright has no documents regarding Complainant other than those previously mentioned and redacted pursuant to the attorney/client privilege and work product privilege. . . . Other documents consist of attorney notes and work product prepared in anticipation of litigation of complainant's second complaint.

   Complainant's Interrogatory No. 19

19. Please identify each and every requested document over which you assert any privilege or immunity, or which has been destroyed, stolen, altered, defaces or withheld for any reason.

Respondent's answer

   The following documents are retained based on the attorney work product privilege to include documents obtained in anticipation of litigation:

   a) Notes of interviews with Beverly Brennan, Jeffery Marsala, Thad Allen, Ron Barrow and Russell Wright.

   b) Written response from Ron Barrow to Agency counsel to assist in preparing Respondent agency's response to interrogatories and production of documents and in preparing for the hearing.

   Enclosure N was not provided to the Court. To the extent that Respondent EPA has not complied with the above requirements for a privilege log regarding its assertion of attorney-client, and work product privileges, Respondent EPA has until April 25, 2003 to serve a privilege log on Complainant.

3. "Treatment"

   Complainant objects that Respondent improperly quibbled over words such as "treatment" and "upper management." After reviewing Respondent's answers to the relevant requests for production of documents and interrogatories, I do not find that Respondent's "quibbling" over word choice affects the substance of its responses. Regarding Complainant's contentions with other allegedly "baseless" objections, I do not find it appropriate in a discovery motion to pass judgment on the substantive merit of Respondent's answers to discovery.

4. Relevance Objections

   Complainant asserts that Respondent's numerous objections of relevance and "assuming facts not in evidence" are illogical flights of "hypertechnical hogwash." Notwithstanding the dubious merit to many of the objections, Complainant failed to identify any specific response where information was explicitly refused on the basis of relevance or on the basis that the interrogatory assumed facts not in evidence. Rather, Respondent seems to have engage in the practice of raising numerous objections and then proceeding to author a response.

5. Unduly Burdensome

    Complainant takes issue with Respondent's objection that some discovery sought is unduly burdensome. The party resisting discovery has the responsibility of establishing undue burden. Coker v. Duke & Co., Inc., 177 F.R.D. 682, 686 (1998). An objection to an interrogatory or document request must state with specificity the objection and how it relates to the particular request being opposed, and not merely that it is "overly broad and burdensome:"

To voice a successful objection to an interrogatory [the objecting party] cannot simply intone this familiar litany. Rather, [it] must show specifically how, despite the broad and liberal construction afforded the federal discovery rules, each interrogatory is not relevant or how each question is overly broad, burdensome or oppressive . . . . The burden [is upon] the party resisting discovery to clarify and explain its objections and to provide support therefor.

Harding v. Dana Transport, Inc., 914 F. Supp. 1084, 1102 (D.C. NJ 1996) (quoting Roseberg v. Johns-Manville Corp., 85 F.R.D. 292, 296-97 (E.D. Pa. 1980)).

   "An objection must show specifically how a [discovery request] is overly broad, burdensome or oppressive, by submitting evidence or offering evidence which reveals the nature of the burden." Chubb Integrated Systems, Ltd. v. National Bank of Washington, 103 F.R.D. 52, 59-60 (D. D.C. 1984). Failure to meet this burden "may result in waiver of the objections." In re Folding Carton Antitrust Litigation, 83 F.R.D. 251, 264 (N.D. Ill. 1978). "In light of the broad construction given to discovery requests, [the objecting party has] a heavy burden to show why discovery should be denied." Schapp v. Executive Industries, Inc., 130 F.R.D. 384, 389 (N.D. Ill. 1990) (citing Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).

   Despite objecting that numerous discovery requests were unduly burdensome, Respondent provided some documents and stated that Complainant had possession of documents previously provided in earlier litigation between the parties. This is a new whistleblowing complaint with new issues arising after the issuance of my September 24, 2002, Recommended Decision and Order. Respondent's assertion that documents were previously provided to Complainant in the earlier litigation is insufficient and the requested documents must be turned over by April 25, 2003. However, because this case only concerns activities occurring after September 24, 2002, and many of the requested documents that Claimant is entitled to are identical to those provided in the earlier litigation. Respondent may stipulate to the authenticity of the documents provided to Complainant in the earlier litigation rather than reproducing them. Additionally, I find that Complainant's request to produce all letters. etc., bearing Complainant's name is over broad and unduly burdensome. See 2000 Amendments to Fed. R. Civ. R. 26(b)(1). Complainant made no attempt to connect such documentation with the relevant issues in the instant litigation. Thus, Respondent may either stipulate to the authenticity of discovery it provided in the earlier litigation, or reproduce such documentation as identified in is responses to discovery in the instant litigation, and Respondent is not required to produce all documents bearing Complainant's name as such a request is unduly burdensome.

6. The Privacy Act of 1974

   Complainant asserts Respondent improperly objected on grounds of the Privacy Act to its Request for Production No. 5, seeking discovery of the personnel files, security files, Franklin Planners, and all E-mail bearing the names of each and every one of Complainant's managers. A bald assertion of privilege cannot suffice under the federal rules of discovery. Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir. 1984). Respondent objects to the disclosure of information and documents pursuant to the Privacy Act of 1974, 5 U.S.C. § 552a (2002). That statute provides:

(b) Conditions of disclosure. - No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be . . . . (11) pursuant to the order of a court of competent jurisdiction . . . .

5 U.S.C. § 552a(b) (2001).

   Accordingly, the Privacy Act expressly allows court ordered discovery. Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987) (stating that the "Privacy Act does not create a qualified discovery privilege as that concept is generally understood . . . ."). In determining the validity of a Privacy Act objection, the ALJ must balance the need for disclosure and its resulting harm. Id. at 890.

   In this case, I find no reason why Complainant should be entitled to the request complete records of her managers and all files bearing their names. On the other hand, I find that Complainant is entitled to portions of her manager's records, which are not privileged, that concern the issues present in the instant litigation. Thus, Respondent is Ordered to provide portions of Complainant's manager's files, pursuant to Request for Production No. 5, as are relevant to the underlying litigation in the instant whistleblowing complaint.

7. Protective Order

   Complainant moves for a Protective Order from Respondent's "oppression and undue burden in refusing to provide responses under oath, without rewriting them, and in complete answer to her questions." Reviewing Respondent's answers to Complainant's discovery requests, I find no merit in her contentions.

   1. Respondent has until April 25, 2003, to serve an affidavit verifying its responses to Complainant's Request for Production of Documents.

   2. Respondent has until April 25, 2003, to serve a privilege log on Complainant to the extent it has not already done so.

   3. Respondent had until April 25, 2003, serve responses to Complainant's Request for Production of Documents where discovery was denied on the basis that Complainant already had possession of those documents pursuant to discovery in earlier litigation. Alternatively, Respondent may stipulate that such documents in Complainant's custody are authentic.

   4. Respondent has until April 25, 2003, to provide portions of Complainant's manager's files, pursuant to Request for Production No. 5, as are relevant to the underlying litigation in the instant whistleblowing complaint.

   5. Complainant's Motion for a Protective Order is DENIED.

      CLEMENT J. KENNINGTON
      ADMINISTRATIVE LAW JUDGE