                                           Slip Op. 04-92

                UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Judge Judith M. Barzilay
______________________________
                              :
UNITED STATES,                :
                              :
                  Plaintiff,  :
                              :
v.                            :               Court No. 02-00646
                              :
OPTREX AMERICA, INC.,         :
                              :
                  Defendant. :
______________________________:

                          MEMORANDUM OPINION AND ORDER

       This is the third opinion issued in this discovery dispute. See United States v. Optrex

Am., Inc., Slip Op. 04-80 (CIT July 1, 2004) (memorandum opinion and order granting

Defendant’s Motion to Compel Discovery); United States v. Optrex Am., Inc., Slip Op. 04-79

(CIT July 1, 2004) (memorandum opinion and order partially granting and partially denying

Plaintiff’s Motion to Compel Discovery). Following the court’s order dated July 1, 2004,

Plaintiff United States has now submitted for in camera review a revised Privilege Log and

documents relating to Defendant Optrex’s proposed deposition of government counsel, Mr.

Jeffrey Reim, as requested. On July 14, 2004, the court held oral argument in the action “in

reference to Defendant's Motion to Depose Mr. Reim and to allow Plaintiff's counsel to explain

why the court should not sanction the government for its discovery actions which violate court

rules and case law teachings.” Optrex, Slip Op. 04-80 at 10.

       The court here must determine if this revised Privilege Log meets the standards

articulated in the court’s previous opinions for asserting the privilege claimed with respect to
Court No. 02-00646                                                                  Page 2

each listed document. The court must also decide whether any documents concerning Mr.

Reim’s deposition should remain privileged and whether to grant Defendant’s request to depose

Mr. Reim. Finally, the court considers whether to sanction Plaintiff’s counsel for obstructing the

discovery process.

       Plaintiff’s Revised Privilege Log

       Plaintiff’s revised Privilege Log finally presents detailed explanations of the contents of

the documents in question and why Plaintiff believes they deserve privilege. See Pl.’s Revised

General Privilege Log at 1-9 (submitted to the court). As discussed before, USCIT R. 26(b)(5)

establishes the standard for granting privilege claims.

       When a party withholds information otherwise discoverable under these
       rules by claiming that it is privileged or subject to protection as trial
       preparation material, the party shall make the claim expressly and shall
       describe the nature of the documents, communications, or things not
       produced or disclosed in a manner that, without revealing information
       itself privileged or protected, will enable other parties to assess the
       applicability of the privilege or protection.

USCIT R. 26(b)(5). Finding guidance in the cases that interpret the federal rule, the court

observes that, to effectively assert privileged status, a privilege log must

       contain a brief description or summary of the contents of the document,
       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.

Burns v. Imagine Films Entm’t, Inc., 164 F.R.D. 589, 594 (W.D.N.Y. 1996) (quoting the federal
Court No. 02-00646                                                                  Page 3

discovery rule, FED . R. CIV . P. 26(b)(5), Advisory Committee Notes, 1993 Amendments).1

       Plaintiff’s revised Privilege Log meets these criteria in nearly every instance.2 Each

document citation assigns the given document a number and lists its date of creation, its author, a

description of its contents, the privilege claimed, and the basis for claiming the privilege. From

information provided in the Privilege Log, and occasionally from other documents the Log cites,

the court can reasonably determine that the documents for which Plaintiff asserts attorney-client

privilege and/or deliberative process privilege warrant protection. See Pl.’s Revised General

Privilege Log at 1-9; Pl.’s Exs. in Supp. of Pl.’s Opp’n to Def.’s Mot. to Compel Disc. & Pl.’s

Cross-Mot. for a Protective Order, Ex. E (Decl. Asserting Privilege, Robert C. Bonner, Comm’r,

U.S. Customs and Border Protection), Ex. F (Decl. Asserting Privilege, John P. Clark, Director,

Office of Investigations, U.S. Immigration and Customs Enforcement, U.S. Department of

Homeland Security).3

       1
          Reliance on other courts’ decisions is warranted as USCIT R. 26 closely tracks FED . R.
CIV . P. 26.
       2
         In fact, considering the tight one-week schedule counsel had to produce this document,
the court commends counsel on its helpful, meticulous efforts.
       3
          The court notes that even though the documents within the Log appear to warrant
privileged status, Plaintiff’s counsel often invokes the wrong privilege. Plaintiff desires to
protect these documents primarily under the investigatory files privilege perhaps because the
administrative proceeding which gave birth to these documents is denominated a Customs
investigation. However, the description of the documents themselves suggests that the
documents fall under the deliberative process privilege. Compare R.C.O. Reforesting v. United
States, 42 Fed. Cl. 405, 408-409 (1998) (detailing requirements for asserting investigative files
privilege) with Abramson v. United States, 39 Fed. Cl. 290, 293-95 (1997) (delineating the
requirements for asserting deliberative process privilege), and Asahi Chem. Indus. Co. v. United
States, 1 CIT 21, 23 (1980). The deliberative process privilege aims to protect the government’s
“decision-making process” from public exposure. Abramson, 39 Fed. Cl. at 293 (citation and
internal quotation omitted). “Communications are not within the purview of the privilege unless
they are both (1) ‘predecisional’ in that they have been generated prior to an agency’s adoption of
Court No. 02-00646                                                                  Page 4

       On the other hand, eight (8) documents within the Log do not meet standards for privilege

protection. With respect to these documents denoted E 49-109, E 303-305, H 396-456, K 2-4, L

15-23, L 405-410, L558-564, and L 581-88, the Log lists the explanation “Already Provided in

Classification Case” as the claim and basis of privilege.4 Pl.’s Revised General Privilege Log at

1, 3, 6-7. A party cannot claim privileged status for a document on the grounds that it has

already provided the document to the opposing party in another case. Moreover, the rules do not

permit a party to withhold discoverable information merely because it is repetitive or redundant;

the request must also be “unreasonable.” See USCIT R. 26(b)(2); cf. Redland Soccer Club, Inc.

v. Dep’t of the Army of the United States, 55 F.3d 827, 856 (3d Cir. 1995) (noting that parties

resisting discovery must demonstrate the “burdensome or oppressive” nature of the request)

(quotations omitted), cert. denied, 516 U.S. 1071 (1996). Here, the court determines that

Optrex’s repeated request for documents provided in another case before another judge is not

unreasonable. Thus, the court orders the government to provide these documents to Optrex in

this proceeding.




a policy or decision and (2) ‘deliberative’ in that they reflect the give-and-take of a deliberative
decision-making process.” Seafirst Corp. v. Jenkins, 644 F. Supp. 1160, 1163 (W.D. Wash.
1986) (citations omitted). Case law throughout the federal system reveals–and often laments–the
often blurred lines between recognized privileges, and courts frequently give the same privilege
different names. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149-50 (1975) (elucidating
multiple names given to similar privileges); Abramson, 39 Fed. Cl. at 293-95; Zenith Radio
Corp. v. United States, 764 F.2d 1577, 1580 (Fed. Cir. 1985) (noting analogous characteristics of
different privileges). In any event, choice of privilege-name aside, judging by these documents’
descriptions within the Log, they fall under the deliberative process privilege and should
therefore be granted that status.
       4
        The “Classification Case” referred to is Court No. 00-382 currently before Judge
Wallach.
Court No. 02-00646                                                                  Page 5

       The Deposition of Mr. Reim

       In its Motion to Compel Discovery, Defendant Optrex sought to depose Customs

Assistant Chief Counsel Jeffrey Reim because it believed that he “may have acted outside of the

scope of his duties as an attorney when he assumed the role of special agent during the

underlying investigation.” Def.’s Mot. to Compel at 13. The court previously noted that it could

not “determine the nature of the information Mr. Reim may have provided the government, let

alone whether it deserves privileged status.” Optrex, Slip Op. 04-80 at 8. Consequently, the

court instructed Plaintiff to submit to chambers for in camera review those documents regarding

Mr. Reim for which Plaintiff desires to assert privilege. See id. at 10. After careful review of the

submitted documents, the court finds no indication that Mr. Reim acted outside his role as

attorney or acted as a special agent on behalf of the government during the course of this

investigation.5 Furthermore, even if the information Mr. Reim acquired were not to fall under the

scope of attorney-client privilege, such information would receive protection on grounds of

deliberative process privilege. See supra note 3.

       The question is then whether Defendant can sufficiently demonstrate that it needs access

to this privileged material to be able to present a proper defense. When examining the merits of

a party’s motion to access normally privileged government documents and information, one of


       5
          To further support its request that it depose Mr. Reim as a special agent of the
government, Optrex submitted to the court deposition testimony allegedly showing that Mr.
Reim played such a role. However, as the government correctly points out, this testimony shows
that the case was handled by two other special agents and (even further) that Mr. Reim was
merely the “counsel involved.” Def.’s Supplemental Submission pursuant to Oral Argument of
July 14, 2004, Dep. of Nicholas Candela at 26:20-24; see also Pl.’s Response at 2. There is no
indication that Mr. Reim acted outside his role as counsel. Indeed, by virtue of lacking any
analysis on this point Optrex’s submission does not in any way help its case.
Court No. 02-00646                                                                  Page 6

the methods courts apply is a balancing test that weighs the need for secrecy against the need for

discovery. See Zenith Radio Corp., 764 F.2d at 1580-81. That is, if Defendant can show that its

efforts to defend against the government’s suit would be significantly hampered if the privilege is

not waived, the court will allow the waiver. Defendant made no such showing.

       During oral argument, Defendant Optrex’s counsel suggested that Mr. Reim appeared to

have something to conceal and further implied that Mr. Reim gained access to former Optrex

employees to gather information to be used against Optrex. After careful deliberation the court

remains unconvinced by such arguments. First, if the government decides to call these former

employees to testify in court, Defendant will know their identity in advance and will have ample

opportunity to depose them and cross-examine them at trial. Moreover, Defendant should know

the whereabouts of its past and current employees and what kind of information they would

reveal about the company. Defendant’s claim that it must be permitted to depose Mr. Reim

because of his allegedly superior knowledge on these matters therefore carries no merit.

Likewise, because this penalty case turns on the finding of a negligent act or omission as outlined

in 19 U.S.C. § 1592, the government need not provide Defendant with evidence that Defendant

did not behave negligently. That burden falls squarely upon Defendant. See 19 U.S.C. §

1592(e)(4).6


       6
          The pertinent parts of 19 U.S.C. § 1592(e) reads:
Notwithstanding any other provision of law, in any other proceeding commenced by the United
States in the Court of International Trade for the recovery of any monetary penalty claimed under
this section--
...
(4) if the monetary penalty is based on negligence, the United States shall have the burden of
proof to establish the act or omission constituting the violation, and the alleged violator shall
have the burden of proof that the act or omission did not occur as a result of negligence.
Court No. 02-00646                                                                   Page 7

       For all these reasons, the court finds that Defendant Optrex has not demonstrated why it

should be allowed to depose Mr. Reim or gain access to any documents he wrote or received that

relate to this case. Thus, the court denies Defendant’s request to depose Mr. Reim and also

grants the related documents privileged status.

       Sanctioning Government’s Counsel

       In this court’s Memorandum Opinion and Order on Defendant’s Motion to Compel

Discovery, the court considered sanctioning Plaintiff’s counsel for obstructing the discovery

process. See Optrex, Slip Op. 04-80 at 10. The court observed that counsel’s objections to

Defendant’s interrogatories were “improper” and that counsel forwarded to Defendant’s counsel

voluminous quantities of unorganized documents that appeared to have little bearing on the case.

Id. at 3, 9. However, since then, Plaintiff’s counsel indicated that the documents were in the

order Customs arranged them during the course of the investigation. Aff. (public version) of Jay

V. Ratermann, Special Agent with U.S. Immigration and Customs Enforcement at 2. Rule 34 of

this Court acknowledges that a “party who produces documents for inspection shall produce

them as they are kept in the usual course of business or shall organize and label them to

correspond with the categories in the request.” USCIT R. 34(b). Customs may benefit from a

better organizational system for its files, yet such poor organization itself does not warrant

sanctions under USCIT R. 37. On the other hand, the court reiterates to government’s counsel

that “General Objections are not allowed” in any court in the federal system. Optrex, Slip Op.

04-80 at 3. The court will look with extreme disfavor upon further government use of such

improper objections.

       For all the foregoing reasons and after due deliberation, it is hereby
Court No. 02-00646                                                                  Page 8

          ORDERED that Plaintiff’s privilege requests for documents denoted as E 49-109, E 303-

305, H 396-456, K 2-4, L 15-23, L 405-410, L558-564, and L 581-88 in its revised Privilege Log

are DENIED, and that Plaintiff provide these documents to Defendant’s counsel within one week

from the date of this opinion; it is further

          ORDERED that all documents listed in Plaintiff’s revised Privilege Log, excepting those

mentioned in the paragraph directly above, receive privileged status and are protected; it is

further

          ORDERED that Defendant’s motion to depose Mr. Reim is DENIED, and that all related

documents maintain their privileged status; and it is further

          ORDERED that Plaintiff’s Motion for Leave to File the Declaration of Jay V. Ratermann

is GRANTED and accordingly relied on in this opinion.




Dated:__July 27, 2004_________                             ___/s/ Judith M. Barzilay______

          New York, New York                                         Judith M. Barzilay
