CCASE_NAME:
OFCCP v. USAA FEDERAL SAVINGS BANK
CCASE_NO:
87-OFC-27
DDATE:
19891220
TTITLE:
RULINGS AND ORDER ON PLAINTIFF'S
AND DEFENDANT'S MOTIONS
TTEXT:
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In the Matter of
U. S. DEPARTMENT OF LABOR,
OFFICE OF FEDERAL CONTRACT
COMPLIANCE PROGRAMS, DATE ISSUED: DEC 20 1989
Plaintiff
CASE NO.: 87-OFC-27
v.
USAA FEDERAL SAVINGS BANK,
Defendant.
RULINGS AND ORDER ON PLAINTIFF'S AND DEFENDANT'S
MOTIONS TO COMPEL DISCOVERY
The Plaintiff, Office of Federal Contract Compliance
Programs [OFCCP] served the Defendant, USAA Federal Savings Bank
[FSB] with a request that, within a fixed period of time, an
Affirmative Action Plan be provided to the OFCCP, under Executive
Order 11246, [[ SS page 1 line 16 ]] 503 of the Rehabilitation Act
and [[ SS page 1 line 16 ]] 2012 of the Vietnam Era Veteran's Recovery
Assistance Act. From the beginning, FSB has asserted that it is not
a "government contractor" within the purview of these provisions and,
therefore, not subject to compliance review. Various efforts, at
ascending levels of the OFCCP, did not bring about a resolution of
the matter.
After the present action was filed, the parties began their
formal discovery efforts. The OFCCP filed two sets of
Interrogatories, one set of Requests for Production of Documents
and conducted the deposition of Mr. Jack Antonini, the Chief
Operating Officer of FSB, parts of all of which are the subject
of Plaintiff's Motion to Compel. To some of the Interrogatory
questions, Requests for Production and deposition questions,
Defendant objected. The discovery requests to which FSB objected
concern (1) the nature of FSB's Federal Savings & Loan Insurance
Corporation [FSLIC] arrangement, (2) the existence of other contracts
between FSB and the government, (3) affiliates of FSB and FSB's
relationship with those affiliates, and (4) government contracts held
by those affiliates. FSB objected to discovery into these matters on
the grounds of vagueness, burdensomeness and relevance. The primary
issue implicated by all of areas of inquiry is subject matter
jurisdiction: whether FSB is a government contractor. The issue for
the purposes of OFCCP's Motion is whether the Plaintiff may use
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discovery to support its allegation of jurisdiction and to
discover alternative bases for jurisdiction.
As a general principle, the Federal Rules of Civil
Procedure favor broad discovery by all parties, the scope of
which is delineated by these Rules' concept of relevance. For
discovery purposes, relevant material is material admissible as
evidence or material reasonably calculated to lead to the discovery
of admissible evidence. Fed. R. Civ. P. 26(b). I do not accept
FSB's position that questions must be narrowly related to its FSLIC
subscription only; nevertheless, a point exists beyond which Plaintiff
cannot stray, beyond the single entity and indications of affiliates
being manipulated invasively by FSB. Therefore, broad discovery shall
be limited where questions have minimal relevance and appear, in
addition, to be burdensome. Nevertheless, documents of the affiliates
which are within the control of FSB are discoverable and questions
that closely relate to discovering these documents are permissible.
Defendant filed its first Requests for Production of Documents
on September 2, 1988 and its Second Requests for Production of
Documents on January 9, 1989. On November 7, 1988, Plaintiff filed
its Responses to Defendant's first Requests; these responses withheld
certain documents on the grounds of the governmental internal
deliberative process privilege and on the basis of the attorney/client
privilege, inter alia. The OFCCP describes the documents withheld as
pertaining to (1) rulemaking, (2) formulation of directives for field
personnel, (3) preparation of correspondence, (4) material prepared
and communicated only within the Office of the Solicitor of Labor, (5)
preparation of opinion letters, and (6) complaint investigation and
compliance review.
In order for the attorney/client privilege to be applicable, the
documents withheld must contain communication between the client and
the attorney, based on then-confidential information which remains so,
which was made for the purpose of rendering or obtaining legal advice.
See, e.g., U.S. v. United Shoe Machinery Corp., 89 F. Supp. 357,
358-359 (D. Mass. 1950); see also Mead Data Central, Inc. v. U.S.
Dept. of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). In all
cases where possible without revealing the confidential information,
the documents must be produced after excision of the privilege
material.
The government's internal deliberative process privilege applies
where disclosure of pre-decisional deliberative documents would
discourage open, candid communication in the decision-making process
or would mislead the public about the agency's policies or the bases
for maintaining them; the privilege must be invoked after personal
consideration by the head of the agency with control of the matter or
by a delegate acting under specific guidelines. See Coastal States
Gas Corp.
~3
v. Dept. of Energy, 617 F.2d 854, 866-867 (D.C. Cir. 1980);
U.S. v. Reynolds, 345 U.S. 1, 7-8 (1953); Carter v. Carlson, 56
F.R.D. 9, 10 (D.D.C. 1972).
The parties have disputed who is the proper Department of Labor
[DOL] official to invoke the privilege of the internal deliberative
process. In this case, the privilege was asserted by affidavit of
the (Acting) Director of the OFCCP; the Defendant asserts that the
head of the DOL must assert the privilege after personal review of
the documents involved for its applicability. However, the Secretary
of Labor will perform adjudicative functions in this OFCCP case;
therefore, the Secretary is not the appropriate official to make the
claim of the internal deliberative process privilege because she will
perform the ultimate judicial role at this level of the proceedings
(issuance of the final formal administrative decision). Accordingly,
she should not also be put in the position of acting in her executive
capacity, because her consideration of the documents would defeat the
privilege by requiring the same person to review the documents, invoke
the privilege and judicially determine its validity. Requiring the
Secretary to delegate with case-specific instructions the authority
to invoke the privilege poses the same problem. Therefore, the
proper official to invoke the privilege must be out of the chain of
delegation of the Secretary's adjudicative function; the Director,
OFCCP is the highest official with the detailed knowledge of these
cases who will not perform a judicial role in this case.
The Defendant argues that the privilege must be invoked by
the Secretary of Labor or a high-level official to whom
authority to invoke the privilege has been delegated with
case-specific guidelines because the person invoking the
privilege must be politically accountable. That interest, of
accountability for actions, must be balanced with the interest
of not destroying the privilege by having an adjudicating
official reviewing the documents for invokation. However, in
this case, as the Defendant recognizes (see TR 100 at L. 4-7 and
TR 103 at L. 10-13), the Director of the OFCCP is appointed by
the President after confirmation and is, thereby, politically
accountable. In addition, the OFCCP must be considered the
relevant agency in these cases, for the purposes of performing
an advocate's function of invokation of a privilege, because the
alternative is to require officials higher up to act as both
litigants and adjudicators.
Accordingly, I find that the present Director, OFCCP has
the authority to make the claim of applicability of the internal
deliberative process privilege in this case.
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Here too, the agency must redact those non-privileged
portions where possible without exposing the privileged
material. See, e.g., Greene v. Thalhimer's Stores, Inc., 93
F.R.D. 657 (E.D. Va. 1982).
I. PLAINTIFF'S MOTION TO COMPEL
A. Questions in Antonini Deposition
Page 26, line 17: Objection sustained.
Page 32, line 6: Objection sustained, and no adverse
inference will be drawn by the refusal to answer.
Page 51, line 11: A responsive answer is to be given to
the question (no objection was lodged).
Page 57, line 6: Objection sustained.
Page 58, line 6: Objection sustained.
Page 58, line 13: Objection sustained.
Page 59, line 10: Objection sustained.
Page 59, line 20: Objection sustained.
Page 60, line 13: Objection sustained.
Page 60, line 22: Objection sustained.
Page 61, line 10: Objection sustained.
Page 63, line 5: Objection sustained.
Page 63, line 15: Objection sustained.
Page 70, line 11: Objection sustained.
Page 70, line 23: Objection sustained.
Page 71, line 9: Objection sustained.
Page 77, line 3: Objection sustained.
Page 77, line 10: Objection sustained.
Page 79, line 7: Objection sustained.
Page 79, line 18: Objection sustained.
Page 80, line 5: Objection sustained.
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Page 80, line 13: Objection sustained.
Page 81, line 10: Objection sustained.
Page 82, line 4: Objection sustained.
Page 83, line 19: Objection sustained.
Page 84, line 11: Objection sustained.
Page 85, line 14: Objection sustained.
Page 86, line 4: Objection sustained.
Page 87, line 12: Objection sustained.
Page 87, line 24: Objection sustained.
Page 90, line 12: Objection overruled. The witness should
answer as to any company which directly or indirectly controls
FSB, to the full extent of his personal knowledge, and his
answer should not be limited to the immediate parent company.
Page 90, line 24: Same ruling as immediately above.
Page 91, line 23: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 92, line 4: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 93, line 23: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 94, line 4: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 94, line 8: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 94, line 15: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 94, line 20: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 94, line 24: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 95, line 6: Objection overruled. The witness should
answer to the best of his personal knowledge.
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Page 95, line 19: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 101, line 6: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 117, line 14: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 119, line 23: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 120, line 13: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 123, line 19: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 126, line 9: Objection overruled. The witness should
answer to the best of his personal knowledge.
Page 141, line 25: Objection overruled on relivancy,
however the question is too broad in scope and too vague.
Page 142, line 7: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 142, line 13: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 142, line 19: Objection sustained on the grounds of
vagueness and ambiguity.
Page 142, line 23: Objection overruled. The witness
should answer to the best of his personal knowledge.
Page 145, line 4: Objection overruled. The witness
should answer to the best of his knowledge.
Page 145, line 21: Objection overruled. The witness
should answer to the best of his personal knowledge.
B. Plaintiff's Requests for Production of Documents
Request #2: Objection is sustained on the grounds of
relevancy and burdensomeness.
Request #4: Objection is overruled. Defendant is to
produce true and correct copies of the documents.
Request #5: Objection is overruled as it relates to
defendant's property. Objection is sustained on the grounds of
burdensomeness and relevancy with reference to affiliates. The
answers presently given to this Request are sufficient.
~7
C. Plaintiff's first set of Interrogatories 1
Interrogatory 2: Objection is sustained on both grounds
of relevance and burdensomeness with reference to affiliates.
Objection overruled with reference to FSB. The present answer
is sufficient.
Interrogatory 3: Objection is sustained on both grounds
of relevance and burdensomeness with reference to affiliates.
Objection overruled with reference to FSB. The present answer
is sufficient.
Interrogatory 4: Objection regarding affiliates is
sustained on the ground of burdensomeness, but overruled on
ground of relevance.
Interrogatory 6: Objection regarding affiliates is
sustained on the ground of burdensomeness, but overruled on
ground of relevance.
Interrogatory 7: This Interrogatory is ambiguous and
vague, especially since it seeks one answer to two
Interrogatories at one time. Accordingly, Defendant need not
answer the question in this form.
Interrogatory 8: Objection overruled on ground of
relevancy regarding FSB. Objection is overruled on ground of
relevancy, but sustained on ground of burdensomeness regarding
affiliates.
Interrogatory 9: Objection overruled on ground of
relevancy regarding FSB. Objection is overruled on ground of
relevancy, but sustained on ground of burdensomeness regarding
affiliates.
Interrogatory 10: Objection overruled on ground of
relevancy regarding FSB. Objection is overruled on ground of
relevancy, but sustained on ground of burdensomeness regarding
affiliates.
Interrogatory 11: Objections sustained on all grounds.
Interrogatory 12: Objection overruled on ground of
relevancy regarding FSB. Objection is overruled on ground of
relevancy, but sustained on ground of burdensomeness regarding
affiliates.
1 Any allusion to defendant's responses to both sets of
Interrogatories is meant to refer to the combined first and
amended Responses to Interrogatories.
~8
Interrogatory 14: Objection is sustained on both grounds
stated as far as affiliates are concerned.
Interrogatory 23: Objection on ground of relevancy is
overruled for both Defendant and affiliates. Objection is
sustained on ground of burdensomeness regarding affiliates.
Interrogatory 24: Objection on ground of relevancy is
overruled for both Defendant and affiliates. Objection is
sustained on ground of burdensomeness regarding affiliates.
D. Plaintiff's Second Set of Interrogatories
Interrogatory 1: Objection overruled.
Interrogatory 2: This question was sufficiently answered
by Defendant's answer to Interrogatory 1.
Interrogatory 10: Objection on the ground of relevance is
overruled. Objections on the grounds of vagueness and
overbroadness are sustained.
Interrogatory 14: Objections are sustained on all grounds.
Interrogatory 15: Objection is overruled and Defendant
should answer all portions of this Interrogatory fully.
Interrogatory 19: Objection is overruled on ground of
relevancy; but sustained on grounds of vagueness and
burdensomeness.
Interrogatory 20: Objection is overruled and Defendant
should answer all portions of this interrogatory fully.
Interrogatory 23: Objection on ground of relevance is
overruled, but sustained on ground of burdensomeness.
Interrogatory 28: Objections are overruled on all
grounds. The answer given by Defendant is sufficient.
Interrogatory 29: Objections are overruled on all
grounds. The answer given by Defendant is sufficient.
Interrogatory 30: Objections are overruled on all
grounds. The answer given by Defendant is sufficient.
Interrogatory 31: Objection is overruled. Defendant
should answer fully.
Interrogatory 32: Objection is overruled. Defendant
should answer fully.
~9
Interrogatory 33: Objection is overruled. Defendant
should answer fully.
Interrogatory 34: Objection is overruled. Defendant
should answer fully.
Interrogatory 35: Objection is overruled. Defendant
has answered fully.
Interrogatory 36: Defendant has answered fully.
Interrogatory 39: Objection is overruled. Defendant
should answer fully.
Interrogatory 40: Objection is overruled. Defendant
should answer fully.
Interrogatory 43: Objection is overruled. Defendant
should answer fully.
Interrogatory 44: Defendant has answered fully.
Interrogatory 45: Objection overruled; presently the
answer is complete.
Interrogatory 46: The answer to Interrogatory 45 is a
complete answer to this Interrogatory.
Interrogatory 47: Objection overruled; however, Answer is
sufficient.
Interrogatory 48: The answer to Interrogatory 47 is a
complete answer to this Interrogatory.
Interrogatory 49: Objection is overruled. Defendant
should answer fully.
Interrogatory 50: Objection is overruled. Defendant
should answer fully.
Interrogatory 51: Objections on the grounds of relevancy
and burdensomeness are overruled, but the objection on the
ground of vagueness is sustained. Accordingly, Defendant has
answered this Interrogatory sufficiently.
Interrogatory 52: Defendant's answer to Interrogatory 51
is sufficient response to this Interrogatory.
Interrogatory 55: The objection on the grounds of
relevancy is sustained.
Interrogatory 56: The objection on the grounds of
relevancy is sustained.
~10
Interrogatory 57: Objection on ground of relevancy to
parts (a) to (n) inclusive is overruled. Objection on the
ground of vagueness is sustained as to the entire Interrogatory.
Interrogatory 58: If and when Plaintiff overcomes the
vagueness problem of Interrogatory 57, the objection to this
Interrogatory should be overruled.
Interrogatory 59: The objection based on the ground of
relevance is overruled and the objection based on the ground of
vagueness is sustained.
Interrogatory 60: The objection based on the ground of
relevance is overruled and the objection based on the ground of
vagueness is sustained.
Interrogatory 61: All objections are overruled.
Interrogatory 62: All objections are overruled.
Interrogatory 63: The objection on the ground of relevance
is overruled; however, the objection on the ground of vagueness
is sustained. Accordingly, defendant has answered this
Interrogatory sufficiently.
Interrogatory 64: The objection to relevancy is overruled;
however, the defendant has answered this Interrogatory
sufficiently.
Interrogatory 65: The answer by Defendant to Interrogatory
64 is sufficient as an answer to this Interrogatory.
Interrogatory 67: Defendant's objection on the grounds of
relevance is overruled. The answer given by Defendant to this
Interrogatory is a sufficient response.
Interrogatory 68: Defendant's answer to 67 is sufficient
response to this Interrogatory.
Interrogatory 69: Defendant's objection on the grounds of
relevance is sustained.
Interrogatory 70: Defendant's objection is overruled.
However, the answer given by Defendant to this Interrogatory is
sufficient.
Interrogatory 71: Defendant's objection is overruled.
However, the answer given by Defendant to this Interrogatory is
sufficient.
Interrogatory 72: Defendant's objection is overruled.
However, the answer given by Defendant to this Interrogatory is
sufficient.
~11
Interrogatory 73: Defendant's objection is overruled.
However, the answer given by Defendant to this Interrogatory is
sufficient.
Interrogatory 74: Defendant's objection is overruled.
However, the answer given by Defendant to this Interrogatory is
sufficient.
Interrogatory 75: Defendant's objection is overruled.
However, the answer given by Defendant to this Interrogatory is
sufficient.
Interrogatory 76: Defendant's answers to Interrogatories
74 and 75 constitute a sufficient answer to this Interrogatory.
Interrogatory 80: Defendant's objections on the grounds of
relevance and burdensomeness are overruled; however, with
reference to part (b), the objection on the ground of vagueness
is sustained. Accordingly, defendant must answer part (a) of
this Interrogatory.
Interrogatory 82: Defendant's objection on the ground of
relevance is overruled; however, the response of the Defendant
to this Interrogatory is sufficient.
Interrogatory 83: Defendant's objections are overruled;
however, the response provided by Defendant to this
Interrogatory is sufficient.
Interrogatory 84: Defendant's objection on the ground of
relevance is overruled. However, the response given by the
Defendant to this Interrogatory is considered sufficient.
Interrogatory 85: Defendant's objection on the ground of
relevance is overruled. However, the response given by the
Defendant to this Interrogatory is sufficient.
Interrogatory 86: Defendant's objection on the ground of
relevance is overruled. However, the response given by the
Defendant to this Interrogatory is sufficient.
Interrogatory 87: Defendant's objection on the ground of
relevance is overruled. However, Defendant's response to this
Interrogatory is sufficient.
Interrogatory 88: Defendant's objection on the ground of
relevance is overruled. However, the response of the Defendant
to this Interrogatory is sufficient.
Interrogatory 89: Defendant's objection on the ground of
relevance is overruled. However, the response of the Defendant
to this Interrogatory is sufficient.
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II. DEFENDANT'S MOTION TO COMPEL
Considering the previously-stated principles and the above
finding that the Director, OFCCP is the proper official to
invoke the IDP privilege, the following RULINGS are hereby made
with respect to the claims of the attorney/client [A/C] and
internal deliberative process [IDP] privileges:
A. Appendix DD
1. Document 1, withheld on the ground of the IDP
privilege, need not be produced.
2. Document 2, withheld on the basis of the IDP privilege,
need not be produced.
B. Appendix EE
1. Document 2, withheld on the basis of the A/C privilege,
need not be produced.
2. Document 3, withheld on the basis of the A/C privilege,
need not be produced.
3. Document 4, withheld under the A/C privilege, need not
be produced unless the Office of Investigation and Compliance is
not part of the OFCCP, in which case it must be produced.
4. Document 5, withheld under both the A/C and IDP
privileges, need not be produced.
5. Document 6, withheld under both the A/C and IDP
privileges, need not be produced.
6. Document 7, withheld under both the A/C and IDP
privileges, need not be produced.
7. Document 8, withheld under both the A/C and IDP
privileges, need not be produced based on the A/C privilege.
8. Document 9, withheld under the A/C privilege, need not
be produced.
9. Document 10, withheld under both the A/C and IDP
privileges, need not be produced.
10. Document 11, withheld under the IDP privilege, need not
be produced.
11. Document 12, withheld under the A/C privilege, need not
be produced.
12. Document 13, withheld under the A/C privilege, need not
be produced.
~13
13. Document 14, withheld under both the A/C and IDP
privileges, must be produced after redaction of Mr. Buff's
handwritten comments and of the transmittal memo.
14. Document 15, withheld under the IDP privilege, must be
produced to the extent it is not merely interpretive of existing
Regulations or policies.
15. Document 15(a), withheld under the IDP privilege, must
be produced to the extent it is not merely interpretive of existing
Regulations or policies.
16. Document 16, withheld under the IDP privilege, need not
be produced.
17. Document 18, withheld under the IDP privilege, must be
produced after redaction of those portions which were not
ultimately approved and adopted by the Secretary for publication.
18. Document 19, withheld under the IDP privilege, must be
produced after redaction of the portions which contain discussion
of the changes and the reasons for them.
19. Document 20, withheld under the IDP privilege, must be
produced unless OFCCP can show by further description of the
document that it is not merely interpretive of existing Regulations
or policies.
20. Document 21, withheld under the IDP privilege, must be
produced after redaction of those portions which were not ultimately
adopted by the OFCCP.
21. Document 22, withheld under the IDP privilege, must be
produced.
22. Document 23, withheld under the IDP privilege, must be
produced.
23. Document 25, withheld under the IDP privilege, need not
be produced.
24. Document 26, withheld under the IDP privilege, need not
be produced.
C. Appendix FF
1. Document 1, withheld under the A/C privilege, need not
be produced.
2. Document 1(a), withheld under the IDP privilege, need
not be produced.
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3. Document 2, withheld under both the A/C and IDP
privileges, need not be produced.
4. Document 3, withheld under both the A/C and IDP
privileges, need not be produced.
D. Appendix HH
1. Document 1, withheld under the IDP privilege, need not
be produced.
2. Document 2, withheld under the IDP privilege, must be
produced.
3. Document 3, withheld under the IDP privilege, must be
produced.
4. Document 4, withheld under the IDP privilege, must be
produced.
5. Document 5, withheld under the IDP privilege, need not
be produced.
6. Document 6, withheld under the IDP privilege, must be
produced after redaction of Ms. Clauss' personal comments on the
proposed Regulations.
7. Document 7, withheld under the IDP privilege, need not
be produced.
8. Document 8, withheld under the IDP privilege, must be
produced.
9. Document 9, withheld under the IDP privilege, must be
produced.
10. Document 10, withheld under the IDP privilege, must be
produced.
11. Document 11, withheld under the IDP privilege, must be
produced.
12. Document 12, withheld under the IDP privilege, must be
produced.
13. Document 13, withheld under the IDP privilege, must be
produced after redaction of the transmittal memo and of the
notes of the changes made.
14. Document 14, withheld under the IDP privilege, must be
produced.
~15
15. Document 15, withheld under the IDP privilege, must be
produced to the extent it does not contain personal comments of
Ms. Norton regarding the Memorandum of Understanding.
16. Document 16, withheld under the IDP privilege, need not
be produced.
17. Document 17, withheld under the IDP privilege, need not
be produced.
18. Document 18, withheld under the IDP privilege, must be
produced.
19. Document 19, withheld under the IDP privilege, must be
produced.
20. Document 21, withheld under the IDP privilege, need not
be produced.
21. Document 22, withheld under the IDP privilege, must be
produced.
22. Document 23, withheld under the IDP privilege, must be
produced.
23. Document 24, withheld under the IDP privilege, need not
be produced.
24. Document 25, withheld under the IDP privilege, need not
be produced.
25. Document 26, withheld under the IDP privilege, need not
be produced.
26. Document 27, withheld under the IDP privilege, need not
be produced.
27. Document 28, withheld under the IDP privilege, need not
be produced.
E. Appendix II
Document 1, the only document in this Appendix, withheld
under the IDP privilege, need not be produced.
F. Appendix KK
1. Document 1, withheld under the IDP privilege, must be
produced unless the OFCCP can show by further description of the
document that it is not merely interpretive of existing
Regulations or policies.
~16
2. Document 2, withheld under the IDP privilege, need not
be produced.
3. Document 3, withheld under the IDP privilege, need not
be produced.
4. Document 4, withheld under the IDP privilege, need not
be produced.
5. Document 5, withheld under the IDP privilege, need not
be produced.
G. Appendix LL
1. Document 1, withheld under the A/C privilege, need not
be produced.
2. Document 2, withheld under both the A/C and IDP
privileges, need not be produced.
3. Document 5, withheld under the A/C privilege, need not
be produced.
4. Document 6, withheld under the A/C privilege, need not
be produced.
H. Appendix NN
1. Document 1, withheld under the IDP privilege, must be
produced.
2. Document 2, withheld under the IDP privilege, must be
produced after redaction of those portions which contain commentary
of the author regarding the positions of the financial regulatory
agencies.
3. Document 5, withheld under the IDP privilege, need not
be produced.
4. Document 6, withheld under the IDP privilege, neet not
be produced.
5. Document 7, withheld under the IDP privilege, must be
produced after redaction of the discussion of the reasons for
the revisions, and of the comments regarding the Executive Order
12067 negotiations and the estimated impact of the notice on
those negotiations.
6. Document 8, withheld under the IDP privilege, need not
be produced.
7. Document 9, withheld under the IDP privilege, must be
produced after redaction of those portions which are merely
~17
interpretive of the existing Regulations and policies and
Executive Order 11246 with regard to the definition of
"government contract".
8. Document 10, withheld under the A/C privilege, need not
be produced.
9. Document 11, withheld under both the IDP and A/C
privileges, need not be produced.
10. Document 12, withheld under both the IDP and A/C
privileges, must be produced after redaction of the confidential
facts conveyed and the legal advice given concerning changes to
the letter.
11. Document 13, withheld under both the IDP and A/C
privileges, need not be produced.
12. Document 14, withheld under both the IDP and A/C
privileges, must be produced after redaction of the legal advice
expressing opinions and recommendations for the proposed changes
to the letter.
I. Appendix B
1. Document 1, withheld under the A/C privilege, need not
be produced.
2. Document 2, withheld under the A/C privilege, need not
be produced.
3. Document 3, withheld under the A/C privilege, need not
be produced.
4. Document 4, withheld under the A/C privilege, need not
be produced.
5. Document 5, withheld under the A/C privilege, need not
be produced.
6. Document 6, withheld under the A/C privilege, need not
be produced.
7. Document 7, withheld under both the A/C and IDP privileges,
need not be produced.
8. Document 8, withheld under both the A/C and IDP privileges,
need not be produced.
9. Document 13, withheld under the IDP privilege, must be
produced after redaction of the comments and suggestions of Mr.
Sprague.
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10. Document 15, withheld under the IDP privilege, need not
be produced.
11. Document 16, withheld under the IDP privilege, need not
be produced.
12. Document 17, withheld under the IDP privilege, must be
produced.
13. Document 18, withheld under the IDP privilege, must be
produced.
14. Document 30, withheld under the IDP privilege, need not
be produced.
J. Appendix C
1. Document 1, withheld under both the A/C and IDP privileges,
need not be produced.
2. Document 2, withheld under both the A/C and IDP privileges,
need not be produced.
Notwithstanding the above rulings on Defendant's Motion to
Compel, OFCCP is hereby ORDERED, with respect to those documents
it has not been required to produce, to redact any portions of
these documents which do not contain confidential material, in
the case of the attorney/client privilege, or deliberative
material, in the case of the internal deliberative process
privilege.
SO ORDERED.
___________________________
ROBERT J. BRISSENDEN
Administrative Law Judge
San Francisco, CA
~19
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Office of the Solicitor (Name)
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Washington, D.C. 20210 Date
GLEN D. NAGER, Esq.
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