UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________

) 

OCEANA, INC., ) 

 ) 

Plaintiff, ) 

) 

 v. ) Civil Action No. 15-1220 (ESH) 

) 

PENNY PRITZKER, in her official capacity ) 

as Secretary of the United States Department of ) 

Commerce, et al. ) 

 ) 

Defendant. ) 

__________________________________________) 

MEMORANDUM OPINION

The motion before the Court presents a challenging legal issue about the composition of 

the administrative record in an arbitrary-and-capricious challenge to agency action: whether 

deliberative-process documents are part of the “whole record” for purposes of judicial review. In 

the underlying action, plaintiff Oceana, Inc. (“Oceana”), a nonprofit advocacy organization, 

challenges a final rule promulgated by the National Marine Fisheries Service (“NMFS”) in order 

to carry out the agency’s statutory mandate related to bycatch reporting.1

 Oceana now moves to 

 

1

 “Bycatch” refers to marine life, which, during the course of commercial fishing operations, is 

inadvertently captured or destroyed, and which is not ultimately sold or released alive. See 16 

U.S.C. § 1802(2) (defining “bycatch” as “fish which are harvested in a fishery, but which are not 

sold or kept for personal use, and includes economic discards and regulatory discards,” but does 

not include “fish released alive under a recreational catch and release fishery management 

program”); see also 50 C.F.R. § 600.350(c) (defining “bycatch” as “fish that are harvested in a 

fishery, but that are not sold or kept for personal use,” including “the discard of whole fish at sea 

or elsewhere . . . and fishing mortality due to an encounter with fishing gear that does not result 

in capture of fish”). 
2 

compel defendants to complete the administrative record by preparing a privilege log that 

includes all documents withheld on the grounds of the deliberative-process privilege. 

It is undisputed that the NMFS did not include in the record numerous documents that 

defendants claim are protected from disclosure by the deliberative-process privilege, and it is 

undisputed that the NMFS did not document the omissions in a privilege log. Oceana reasons 

that the administrative record is incomplete without those documents, or, at a minimum, without 

a privilege log detailing the omissions. Defendants respond that the record is already complete, 

arguing that deliberative-process documents are not part of the administrative record and 

consequently need not be logged as privileged. Upon consideration of the parties’ briefs,2

 and 

for the reasons that follow, the Court agrees with defendants. Oceana’s motion will therefore be 

denied. 

BACKGROUND 

This case arises under the Magnuson-Stevens Fishery Conservation and Management 

Act, 16 U.S.C §§ 1801–1884. The Magnuson-Stevens Act sets forth the legal framework to 

“conserve and manage the fishery resources” of the United States. See id. § 1801(b)(1). The 

Magnuson-Stevens Act was amended in 1996 to require regional fishery councils or the 

Secretary of the NMFS to create fishery management plans that “establish a standardized 

reporting methodology to assess the amount and type of bycatch occurring in the fishery and 

 

2

 Before the Court are Oceana’s motion to compel (Pl.’s Mot., Apr. 16, 2016, ECF No. 13), 

defendants’ opposition (Defs.’ Opp’n, Apr. 29, 2016, ECF No. 14), Oceana’s reply (Pl.’s Reply, 

May 6, 2016, ECF No. 15), and both parties’ supplemental briefs (Pl.’s Suppl. Br., July 15, 2016, 

ECF No. 17; Defs.’ Suppl. Br., July 20, 2016, ECF No. 18). In addition, the Court heard oral 

argument on this matter on June 21, 2016. Following the hearing, the Court ordered defendants 

to produce 25 documents for in camera review. (Minute Order, June 21, 2016.) The motion 

before the Court is resolved as a matter of law, and thus, the in camera review did not affect the 

disposition of this motion. 
3 

include conservation and management measures that . . . minimize bycatch[] and . . . the 

mortality of bycatch.” Pub. L. No. 104-297, 110 Stat. 3559 (1996) (codified as amended at 16 

U.S.C. § 1853(a)(11)). 

Pursuant to this amendment, on June 30, 2015, the NMFS promulgated as a final rule an 

“omnibus amendment” for a standardized bycatch reporting methodology (“SBRM”) for all 

thirteen of the federal fisheries in the Northeast region. 80 Fed. Reg. 37,182 (June 30, 2015). 

Oceana thereafter filed this lawsuit, alleging that the 2015 SBRM omnibus amendment “fails to 

address . . . fundamental legal flaws” of the prior SBRM omnibus amendment, perpetuates the 

NMFS’s “practice of underfunding and marginalizing its bycatch monitoring systems,” and 

therefore “undermine[s] rather than advance[s] the goals established by Congress.” (Compl. 

¶¶ 4, 6, ECF No. 1.) 

This is not the first time that Oceana has brought a legal challenge to the NMFS’s 

attempts to comply with the Magnuson-Stevens Act’s SBRM mandate. In 2008, Oceana filed a 

similar lawsuit challenging the NMFS’s 2008 SBRM omnibus amendment for the same thirteen 

federal fisheries. Oceana v. Locke et al., 725 F. Supp. 2d 46 (D.D.C. 2010) (“Oceana I”), rev’d, 

670 F.3d 1238, 1239 (D.C. Cir. 2011) (“Oceana II”); see 73 Fed. Reg. 4736, 4737 (Jan. 28, 

2008). In the prior action, this Court granted summary judgment in favor of defendants and 

dismissed the case with prejudice. Oceana I, 725 F. Supp. 2d at 70.3

 On appeal, the D.C. Circuit 

reversed the grant of summary judgment and remanded to this Court, with orders to “vacat[e] the 

 

3

 Prior to granting summary judgment for defendants, this Court affirmed, over Oceana’s 

objections, the magistrate judge’s decision denying Oceana’s motion to compel completion of 

the administrative record. Oceana v. Locke et al., 634 F. Supp. 2d 49, 51 (D.D.C. 2009),

affirming Oceana v. Locke et al., No. 08-cv-318, 2009 WL 1491516 (D.D.C. May 28, 2009) 

(Kay, M.J.). The Court of Appeals expressly did not reach the merits of the denial of the motion 

to compel when it reviewed the grant of summary judgment. Oceana II, 670 F.3d at 1243. 
4 

Amendment and remand[]” the matter to NMFS “for further proceedings.” Oceana II, 670 F. 3d 

at 1243. Following this Court’s remand to NMFS, the agency promulgated as a final rule the 

new SBRM omnibus amendment at issue in this case. See 80 Fed. Reg. 37,182 (June 30, 2015). 

Oceana has again challenged the agency action as “arbitrary, capricious, an abuse of discretion, 

or otherwise not in accordance with law.” (Compl. ¶ 21 (quoting 5 U.S.C. § 706(2)(A)).) 

In connection with this lawsuit, the NMFS filed the administrative record for its 2015 

SBRM omnibus amendment rulemaking. (Admin. Rec., Nov. 24, 2015, ECF No. 7.)4

 After the 

parties met and conferred about the scope and contents of the record, the agency filed a 

superseding, supplemented administrative record. (Suppl. Admin. Rec., Apr. 15, 2016, ECF No. 

12.) The supplemented administrative record added “certain documents for which the parties 

were able to reach agreement.” (Defs.’ Opp. at 4.) That supplemented record also contained a 

modified privilege log that omitted the entries for 21 documents that had been listed as withheld 

on the original privilege log as deliberative-process documents. (Pl.’s Mot. at 13 n.49.)5

 Oceana 

then filed this motion to compel. 

In this discovery dispute, Oceana asks the Court to order defendants to (1) “conduct a 

complete review of its agency files, including email correspondence involving key policymakers 

and stakeholder[s] involved with the development of the SBRM process”; (2) “produce the 

complete [] Administrative Record by including all such responsive documents from that 

search”; and (3) “in the case of any relevant document withheld based on deliberative process 

 

4

 Defendants submitted documents comprising the “2008 Administrative Record”—those that 

pertain to the 2008 SBRM omnibus amendment–and another set of documents related to the 

2015 SBRM omnibus amendment process, the “2015 Administrative Record.” 

5

 Twenty of the 21 documents were logged as withheld based on the deliberative-process 

privilege. The final document was claimed to be attorney work product. Defendants now 

maintain that all 21 documents are predecisional and deliberative and that their inclusion in the 

original privilege log was unnecessary and accidental. 
5 

claims (or any other asserted privilege or protection), to list each document on a privilege log 

with detail sufficient to allow Oceana and the Court to evaluate the claim.” (Pl.’s Mot. at 3.) 

Given the nature of Oceana’s requests, and given the undisputed fact that there are 

deliberative-process documents that have not been included in the record or logged as privileged, 

the disposition of the motion depends on whether deliberative materials should be included in the 

administrative record for judicial review, and if so, whether defendants must file a privilege log 

documenting the materials withheld pursuant to that privilege. 

ANALYSIS 

I. LEGAL STANDARD

As this case arises under the Magnuson-Stevens Act, the Court’s review is cabined by the 

Administrative Procedure Act, 5 U.S.C. § 706 (“APA”). See 16 U.S.C. § 1855(f)(1). The APA 

directs courts to “review the whole record or those parts of it cited by a party.” 5 U.S.C. § 706. 

The Supreme Court has explained that the “whole record” refers to “the full administrative 

record that was before the [agency] at the time [it] made [its] decision.” Citizens to Pres. 

Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), abrogated on other grounds by Califano 

v. Sanders, 430 U.S. 99, 97 (1977); see IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C. Cir. 1997) 

(“It is a widely accepted principle of administrative law that the courts base their review of an 

agency’s actions on the materials that were before the agency at the time its decision was 

made.”); Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (“If a 

court is to review an agency’s action fairly, it should have before it neither more nor less 

information than did the agency when it made its decision.”).6

 As a general matter, “[t]he task of 

 

6

 The parties agree that the “whole record” includes “all documents and materials that the 

agency directly or indirectly considered.” (Pl.’s Suppl. Br. at 1 (quoting Maritel, Inc. v. Collins, 

422 F. Supp. 2d 188, 196 (D.D.C. 2006)); Defs.’ Suppl. Br. at 1 (quoting Pac. Shores Subdiv., 
6 

the reviewing court is to apply the appropriate APA standard of review to the agency decision 

based on the record the agency presents to the reviewing court.” Florida Power & Light Co. v. 

Lorion, 470 U.S. 729, 743–44 (1985) (citation omitted). 

The agency whose action is challenged “is entitled to a strong presumption of regularity 

that it properly designated the administrative record.” Dist. Hosp. Partners, L.P. v. Sebelius, 971 

F. Supp. 2d 15, 20 (D.D.C. 2013) (“Dist. Hosp. I”), affirmed sub nom. Dist. Hosp. Partners, L.P. 

v. Burwell, 786 F.3d 46 (D.C. Cir. 2015) (“Dist. Hosp. II”) (quoting Pac. Shores Subdiv., Cal. 

Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 5 (D.D.C. 2006)). Because of this 

presumption, “[s]upplementation of the administrative record is the exception, not the rule.” Id.

(quoting Pac. Shores, 448 F. Supp. 2d at 5)). 

There are two grounds on which a party may seek “supplementation” of the 

administrative record. First, a party may request the disclosure of “evidence that should have 

been properly a part of the administrative record but was excluded by the agency.” Id. (quoting 

WildEarth Guardians v. Salazar, 670 F. Supp. 2d 1, 5 n.4 (D.D.C. 2009)). For clarity, the Court 

will refer to compelling discovery on the first ground as completion of the administrative record. 

Second, a party may request disclosure of “extrajudicial evidence that was not initially before the 

agency but the party believes should nonetheless be included in the administrative record.” Id. 

(quoting WildEarth Guardians, 670 F. Supp. 2d at 5 n.4). The Court will refer to compelling 

discovery on the second ground as supplementation of the administrative record. Oceana 

fashions its motion as one for completion, arguing that the agency omitted from the record 

 

Cal. Water Dist. v. U.S. Army Corps of Eng’rs, 448 F. Supp. 2d 1, 4 (D.D.C. 2006)).). However, 

the gravamen of the dispute before the Court is whether predecisional and deliberative 

documents are part of the “whole record” that the agency “directly or indirectly considered.” 
7 

materials that it directly or indirectly considered in making its decision. (See Pl.’s Mot. at 3 

(“The Administrative Record . . . fails to meet minimum standards of completeness”).) 

Courts may not compel an agency to complete the administrative record unless the 

moving party can overcome the presumption of regularity. Dist. Hosp. I, 971 F. Supp. 2d at 20. 

In order to do so, the party seeking completion must present “non-speculative, concrete evidence 

to support their belief that the specific documents allegedly missing from the administrative 

record were directly or indirectly considered by the actual decision makers involved in the 

challenged agency action.” Id. (citing WildEarth Guardians, 670 F. Supp. 2d at 5). The moving 

party “must identify the materials allegedly omitted from the record with sufficient specificity, as 

opposed to merely proffering broad categories of documents and data that are ‘likely’ to exist as 

a result of other documents that are included in the administrative record.” Id. at 20–21 (quoting 

Banner Health v. Sebelius, 945 F. Supp. 2d 1, 17 (D.D.C. 2013)). 7

In challenges to agency action, the deliberative process privilege protects from discovery 

materials that are “pre-decisional” and “deliberative.” See, e.g., Judicial Watch, Inc. v. 

Department of Energy, 412 F.3d 125, 129 (D.C. Cir. 2005). “Pre-decisional” documents are 

 

7

 Other district courts in this Circuit have noted that there exists “some confusion” about the 

showing a party must make to justify a court order to complete the administrative record. E.g., 

Univ. of Colorado Health at Mem'l Hosp. v. Burwell, 151 F. Supp. 3d 1, 13 (D.D.C. 2015) on 

reconsideration, 164 F. Supp. 3d 56 (D.D.C. 2016) (citing The Cape Hatteras Access Pres. 

Alliance v. U.S. Dep't of Interior, 667 F. Supp. 2d 111, 113 (D.D.C. 2009)). As Judge Contreras 

explained, the term “supplement” has been used to describe situations both where a party claims 

the record is incomplete (“record completion”) and where a party seeks extra-record material 

(“record supplementation”). See id. (citing Cape Hatteras Access Pres. Alliance, 667 F. Supp. 

2d at 113). “Perhaps because of that dual use, courts in this district have regularly invoked the 

language from [record supplementation cases] —and have asked whether a party has shown the 

existence of one of the ‘unusual circumstances’” required for record supplementation requests, 

even when considering a request for record completion. Id. Because this motion is resolved on 

different grounds, the Court need not address the parties’ dispute over whether Oceana must 

show “unusual circumstances” to prevail on its motion to compel completion of the record. 
8 

those “prepared in order to assist an agency decisionmaker in arriving at his decision rather than 

to support a decision already made.” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 39 

(D.C. Cir. 2002) (citation and quotation marks omitted). “Deliberative” materials are those that 

“reflect[] the give-and-take of the consultative process.” Id. The gravamen of the present 

dispute is whether these predecisional and deliberative documents are part of the administrative 

record. 

II. APPLICATION 

In this case, the documents that Oceana seeks to compel exist. If Oceana were correct 

that these predecisional and deliberative documents are properly part of the “whole record,” the 

presumption of regularity would not be an obstacle to Oceana’s requests. However, Oceana 

cannot overcome the “insurmountable hurdle” that, in arbitrary-and-capricious challenges to 

agency action, any documents that fall under the deliberative process privilege “are unavailable 

under the clear command of the D.C. Circuit.” See Blue Ocean Institute, et al. v. Gutierrez et al., 

503 F. Supp. 2d 366, 371–72 (D.D.C. 2007) (citing In re Subpoena Duces Tecum Served on 

Office of Comptroller of Currency, 156 F.3d 1279, 1279 (D.C. Cir. 1998)). Consequently, 

Oceana cannot demonstrate that the record is incomplete. 

In many challenges to agency action in which parties seek completion or supplementation 

of the record, it is not clear whether the sought-after documents actually exist. See, e.g., Dist. 

Hosp. I, 971 F. Supp. 2d at 20–21. That is not an issue here. First, there are 21 documents that 

were initially omitted from the administrative record and logged as privileged. When defendants 

filed the supplemented record, those 21 documents were not included as part of the record, and 

the entries were deleted from the privilege log. Defendants have also conceded that there exists 

“numerous” “email exchanges, drafts of documents, and other deliberative documents.” (See 
9 

Defs.’ Opp., Decl. of John K. Bullard ¶ 9.) Defendants later represented that “[t]he total universe 

of all non-record documents initially excluded from the record is approximately 5,000 

documents.” (E-mail from Hubert Yang, U.S. Dep’t of Justice, Envtl. & Natural Res. Div., to 

Brian Gilmore, Law Clerk to the Hon. Ellen Segal Huvelle (July 6, 2016, 8:59 p.m. EST).) 

As this Court has previously noted, “[t]he law is clear: predecisional and deliberative 

documents ‘are not part of the administrative record to begin with,’ so they ‘do not need to be 

logged as withheld from the administrative record.’” Oceana I, 634 F. Supp. 2d at 52 (quoting 

Nat’l Ass’n of Chain Drug Stores, 631 F. Supp 2d at 27). Then-Chief Judge Lamberth’s opinion 

is instructive in this regard: 

Deliberative documents are excluded from the record because, when a party 

challenges agency action as arbitrary and capricious, the reasonableness of the 

agency’s action “is judged in accordance with its stated reasons.” “[T]he actual 

subjective motivation of agency decisionmakers is immaterial as a matter of law–

unless there is a showing of bad faith or improper behavior.” 

Nat’l Ass’n of Chain Drug Stores, 631 F. Supp 2d at 27 (quoting In re Subpoena Duces Tecum, 

156 F.3d at 1279). As “immaterial to the court’s decision, [predecisional and deliberative 

documents] are not designated part of the administrative record that forms the basis of the court’s 

decision.” Id. (citing In re Supoena Duces Tecum, 156 F.3d at 1279). 

This has been the consistent position of courts in this jurisdiction. See, e.g., Am. 

Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 267 (D.D.C. 2013) (“the 

Defendants are entitled to rely on the deliberative process privilege, and are not required to 

submit a log of privileged documents”); Nat'l Ass'n of Chain Drug Stores v. U.S. Dep't of Health 

and Human Serv., 631 F.Supp.2d 23, 27 (D.D.C. 2009), rev'd on other grounds, 670 F.3d 1238 

(D.C. Cir. 2011) (“Defendants do not need to produce a privilege log describing documents 

withheld from the administrative record.”); General Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 18 
10 

(D.D.C. 2009) (rejecting argument that agency's “practice of excluding irrelevant and predecisional deliberative documents from the administrative record results in a skewed record,” 

because “irrelevant documents should be excluded from the record,” and “an agency generally 

may exclude material that reflects internal deliberations”); Stand Up for California! 71 F. Supp. 

3d at 123 (“[P]rivileged and deliberative materials are not part of the administrative record as a 

matter of law.”); Order at 2–3, Greater Yellowstone Coal. v. Kempthorne, No. 07–CV–2111, 

2008 WL 2900439 (D.D.C. May 23, 2008) (Dkt. No. 54) (denying motion to compel privilege 

log of unproduced deliberative materials because “[a]ny evidence of the [agency's] internal 

deliberative work is irrelevant” and plaintiffs did not show that administrative record was 

incomplete); Blue Ocean Inst. v. Gutierrez, 503 F. Supp. 2d 366, 372–73 (D.D.C. 2007) (denying 

motion to compel completion of administrative record, finding that deliberative documents “are 

not a part of the administrative record when an agency decision is challenged as arbitrary and 

capricious,” and rejecting plaintiff's argument that agency must assert deliberative process 

privilege); see also Norris & Hirshberg, Inc. v. SEC,163 F.2d 689, 693 (D.C. Cir. 

1947) (“[I]nternal memoranda made during the decisional process [ ] are never included in a 

record.”). 

Oceana’s reliance on Nat’l Courier Ass’n v. Bd. Of Gov. of Fed. Reserve Sys., 516 F.2d 

1229 (D.C. Cir. 1975), to argue to the contrary appears to be misplaced. In that case, the 

petitioners sought disclosure of the redacted portions of internal agency memoranda, the 

remainder of which had been turned over by the agency as part of the administrative record. Id.

at 1241. The D.C. Circuit reasoned that, if the petitioners were correct that “the deleted material 

contains facts not otherwise in the record. . . .[,] [s]uch facts would certainly constitute 

‘evidence’ which should be included in the record.” Id. The Court of Appeals conducted an in 
11 

camera review before finding “no significant omission” and denying the petition. Id. at 1243. 

Indeed, “[p]urely factual material is, after all, not deliberative, and the agency has no good 

reason to withhold it.” Id. But Oceana has not offered evidence–or even alleged–that the 

communications it seeks contain factual material not otherwise included in the record. 

Moreover, Nat’l Courier cannot carry the day for Oceana in light of subsequent D.C. Circuit 

decisions. 

Subsequent to Nat’l Courier, the D.C. Circuit explained that, where, as here, agency 

action has been challenged as arbitrary and capricious, predecisional and deliberative materials 

which have not been included in the administrative record are “immaterial” absent a showing of 

bad faith or improper behavior by the agency. In re Subpoena Duces Tecum, 156 F.3d at 1279; 

see San Luis Obispo Mothers for Peace v. U.S. Nuclear Regulatory Comm’n, 789 F.2d 26 (D.C. 

Cir 1986) (en banc) (requiring a showing of bad faith before evaluating an agency’s internal 

deliberations). The Court of Appeals has discouraged courts from delving into the internal 

deliberations of agencies, even to evaluate a claim of privilege, absent a showing of bad faith. 

Sitting en banc in San Luis Obispo Mothers for Peace, the Court of Appeals denied the 

petitioner’s request to supplement the administrative record with transcripts of agency meetings. 

789 F.2d at 46. Interpreting the Supreme Court’s opinion in Citizens to Preserve Overton Park 

v. Volpe, 401 U.S. 402 (1971), the Court of Appeals held that the party seeking supplementation 

must show that the agency had acted “improperly or in bad faith” before the court could order 

the agency to disclose the transcripts. Id. at 45 (plurality opinion).8

 But Oceana does not claim 

bad faith on the part of NMFS. 

 

8

 Judge Bork wrote for a plurality of the D.C. Circuit as to that section of the opinion. But a 

majority of the Circuit agreed that there had to be a showing of bad faith in order to supplement 

the record. According to the plurality, the hearing transcript itself could not furnish the evidence 
12 

The presumed exemption from the administrative record of deliberative process materials 

makes good sense. The deliberative process privilege is aimed at “enhanc[ing] the quality of 

agency decisions by protecting open and frank discussion among those who make them within 

the Government.” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8–9, 

(2001) (citation and quotation marks omitted). Protecting those communications “rests on the 

obvious realization that officials will not communicate candidly among themselves if each 

remark is a potential item of discovery and front page news.” Id. The courts’ incursion into the 

deliberations of agencies, even to evaluate the deliberative process privilege, should not extend 

to situations where there is no evidence of bad faith. As Judge Bork explained, 

[S]uch cases [where a court is warranted in examining the deliberative 

proceedings of the agency] must be the rare exception if agencies are to engage in 

uninhibited and frank discussions during their deliberations. Were courts 

regularly to review the transcripts of agency deliberative proceedings, the 

discussions would be conducted with judicial scrutiny in mind. Such agency 

proceedings would then be useless both to the agency and to the courts. We think 

the analogy to the deliberative processes of a court is an apt one. Without the 

assurance of secrecy, the court could not fully perform its functions. 

San Luis Obispo Mothers for Peace, 789 F.2d at 45 (en banc) (plurality opinion). 

The Court is also mindful that requiring all predecisional and deliberative documents to 

be logged in a Vaughn-type index would place a significant burden on agencies whose decisions 

are challenged as arbitrary and capricious. Not only would plaintiff’s position “transform the 

process of judicial review of administration decisions,” it would, as is the case in FOIA 

litigation, require the agency to compile “all internal communications among agency officials 

 

of bad faith; rather the requisite showing had to be made prior to any in camera review. Id. at 

45. Judge Mikva, writing separately, would have required less: an “allegation, strongly 

supported by the record, affidavits, and specific references to the transcripts, that the agency has 

acted in bad faith or with improper purpose.” Id. (Mikva, J., concurring). In other words, Judge 

Mikva would have allowed the content of the transcript itself to be part of the evidence of bad 

faith, but a showing bad faith would still be required. 
13 

pertaining to the claimed deficiency, catalogue them, and claim the deliberative process privilege 

where appropriate, which may be as to all of them.” Blue Ocean Institute, et al. v. Gutierrez 

et al., 503 F. Supp. 2d 366, 371 (D.D.C. 2007). In this case, defendants would be required to 

review and log approximately 5,000 documents. The review would, by defendants’ estimate, 

take four to five staff members and one technical assistant approximately one month to complete. 

(See e-mail from H. Hubert Yang, U.S. Dep’t of Justice, Envtl. & Natural Res. Div., to Brian 

Gilmore, Law Clerk to the Hon. Ellen Segal Huvelle (July 8, 2016, 5:38 p.m. EST).) In addition, 

challenges to the appropriateness of the withholding of documents would require a court to 

determine which documents were directly or indirectly considered by a decision maker, which is 

a highly factual inquiry that could well involve discovery and evidentiary hearings. The agency 

resources would not be well spent, given that those materials are “immaterial as a matter of law.” 

See In re Subpoena Duces Tecum, 156 F.3d at 1279. 

CONCLUSION 

Accordingly, and for the reasons stated above, plaintiff’s motion to compel is DENIED. 

A separate Order accompanies this Memorandum Opinion. 

/s/ Ellen Segal Huvelle 

 ELLEN SEGAL HUVELLE 

 United States District Judge 

Date: November 4, 2016