UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

______________________________ 

 ) 

U.S. DEPARTMENT OF THE ) 

TREASURY ) 

 ) 

Petitioner, ) 

 ) 

 v. ) Case No. 12-mc-100 (EGS) 

 ) 

PENSION BENEFIT GUARANTY ) 

CORPORATION ) 

 ) 

Interested Party, ) 

 ) 

v. ) 

 ) 

DENNIS BLACK, et al., ) 

 ) 

 Respondents ) 

 ) 

MEMORANDUM OPINION 

 This miscellaneous action began six years ago when 

Petitioner, the United States Department of Treasury 

(“Treasury”), moved to quash Dennis Black, Charles Cunningham, 

Ken Hollis and the Delphi Salaried Retirees Association’s 

(collectively, “Respondents”) subpoena requesting documents 

related to Treasury’s involvement in the termination of 

Respondents’ pension plan. That subpoena arose from a civil 

action that began nine years ago and is currently pending in the 

United States District Court for the Eastern District of 

Michigan. In the civil action, Respondents allege that the 

Pension Benefit Guaranty Corporation illegally terminated 
2 

Delphi’s pension plan for its salaried workers, via an agreement 

with Delphi and General Motors, because of improper pressure 

exerted by Treasury. 

In the last four years, the Court has evaluated Treasury’s 

various claims of privilege and has conducted in camera review 

of hundreds of documents related to multiple rounds of briefing. 

Pending before the Court is the Respondents’ renewed motion to 

compel the production of 61 documents withheld by Treasury under 

a claim of the presidential communications privilege. Upon 

consideration of the renewed motion, response and reply thereto, 

the relevant case law, and the entire record, and for the 

reasons set forth below, the motion is GRANTED in PART and 

DENIED in PART.

I. BACKGROUND 

A. Statutory Background 

In 1974 Congress passed the Employee Retirement Income 

Security Act (ERISA) with the goal of safeguarding employees 

against the loss of expected retirement benefits. 29 U.S.C. § 

1301 et. seq. In passing this law, “Congress wanted to guarantee 

that ‘if a worker has been promised a defined pension benefit 

upon retirement--and if he has fulfilled whatever conditions are 

required to obtain a vested benefit--he actually will receive 

it.’” PBGC v. R.A. Gray & Co., 467 U.S. 717, 720 (1984) 

(citations omitted). To that end, Title IV of ERISA created the 
3 

Pension Benefit Guaranty Corporation (“PBGC”) “a mandatory 

Government insurance program that protects the pension benefits 

of over 30 million private-sector American workers who 

participate in plans covered by the Title.” PBGC v. LTV Corp., 

496 U.S. 633, 637 (1990). The PBGC is a “wholly owned Government 

corporation within the Department of Labor.” R.A. Gray & Co., 

467 U.S. at 720. The Board of Directors of the corporation 

“consists of the Secretary of the Treasury, the Secretary of 

Labor, and the Secretary of Commerce.” 29 U.S.C. § 1302(d)(1). 

Title IV of ERISA expressly defines the purposes of the 

PBGC. These purposes are threefold and are aimed at protecting 

pension participants. The first enumerated purpose is to 

“encourage the continuation and maintenance of voluntary private 

pension plans for the benefit of their participants.” 29 U.S.C. 

§ 1302(a)(1). The second purpose is to “provide for the timely 

and uninterrupted payment of pension benefits to participants 

and beneficiaries.” Id. § 1302(a)(2). The last enumerated 

purpose is “to maintain premiums . . . at the lowest level 

consistent with carrying out its obligations.” Id. § 1302(a)(3). 

As these purposes illustrate, the PBGC is entrusted by Congress, 

and by the public through its representatives, with the task of 

“ensur[ing] that employees and their beneficiaries would not be 

deprived of anticipated retirement benefits by the termination 

of pension plans before sufficient funds have been accumulated 
4 

in the plans.” R.A. Gray & Co., 467 U.S. at 720 (citations 

omitted). 

 Termination cannot be avoided at all costs, however. The 

Act recognizes that under certain circumstances a plan must be 

terminated in order to “protect the interests of the 

participants or to avoid any unreasonable deterioration of the 

financial condition of the plan or any unreasonable increase in 

the liability of the fund.” 29 U.S.C. § 1342(c)(1); see also LTV 

Corp., 496 U.S. at 641 (recognizing some plans must be 

terminated to “protect the insurance program from the 

unreasonable risk of large losses.”). As the Act explains, ”[the 

PBGC] may institute proceedings . . . to terminate a plan 

whenever it determines” that inter alia, the “plan has not met 

the minimum funding standard required,” “the plan will be unable 

to pay benefits when due,” or “the possible long-run loss of the 

corporation with respect to the plan may reasonably be expected 

to increase unreasonably if the plan is not terminated.” 29 

U.S.C. § 1342(a)(1)-(4). If the PBGC has determined that the 

plan should be terminated, “it may, upon notice to the plan 

administrator,” apply to the appropriate U.S. district court for 

a “decree adjudicating that the plan must be terminated in order 

to protect the interests of the participants or to avoid any 

unreasonable deterioration of the financial condition of the 
5 

plan or any unreasonable increase in the liability of the fund.” 

Id. § 1342(c)(1). 

B. Factual Background 

Respondents in this miscellaneous action are retired 

salaried employees of the Delphi Corporation (“Delphi”), an 

automotive supply company, and an association of retired 

salaried employees of Delphi. Respondents are also plaintiffs in 

Black v. PBGC, Case No. 09-13616, a civil action pending in the 

United States District Court for the Eastern District of 

Michigan (“civil action”) since 2009. In that civil action, 

Respondents alleged that the PBGC violated Title IV of ERISA and 

the United States Constitution when it was forced to wrongfully 

terminate Respondents’ pension. Respondents’ theory of the case 

is that the “termination occurred as the result of politics, 

with Treasury having impermissibly pressured the PBGC to 

acquiesce in the Plan’s termination as part of Treasury’s 

political goals in restructuring the auto industry in general, 

and GM in particular.” Renewed Mot. Compel, ECF No. 70 at 10.1

Treasury is not a part of the civil action. 

 This miscellaneous action began when Treasury moved to 

quash a subpoena duces tecum served by the Respondents seeking 

 

1 When citing electronic filings throughout this opinion, the 

Court cites to the ECF header page number, not the page number 

of the filed document. 
6 

information related to its claims in the civil action. Treas. 

Mot. Quash, ECF No. 1. Specifically, the subpoena sought all 

documents and things received by, produced or reviewed by 

certain Treasury employees between January 1, 2009 and December 

31, 2009 related to “(1) Delphi; (2) the Delphi Pension Plans; 

or (3) the release and discharge by the [PBGC] of liens and 

claims relating to the Delphi Pension Plans.” Id. at 252–53. 

In a Memorandum Opinion dated June 19, 2014, ECF No. 27, 

this Court ruled that Treasury had failed to meet its burden 

under Federal Rules of Civil Procedure 26 and 45 to quash the 

subpoena duces tecum and therefore denied the motion to quash. 

Treasury responded to the subpoena by withholding or redacting 

1,273 documents under four separate claims of privilege: (1) the 

deliberative process privilege; (2) the presidential 

communications privilege; (3) the attorney-client privilege; and 

(4) the work-product privilege. See generally Mot. Compel, ECF. 

No. 30. Although Treasury asserted privilege for over 1,000 

documents, Respondents only challenged the claims of privilege 

for 866 documents. Treas. Opp’n, ECF No. 35 at 9. 

The Court ordered in camera review of all the documents at 

issue to better evaluate Treasury’s claims of privilege. See

Minute Entry of July 15, 2016. Ten days later, Treasury 

produced, in camera, hard copies of the contested documents 

noting that “[i]n preparing its production, Treasury decided not 
7 

to continue withholding certain documents.” See Notice of 

Production, ECF No. 40 at 1. Treasury revoked its claims of 

privilege over nearly 640 of the 866 contested documents without 

providing any explanation as to why it suddenly withdrew its 

claim of privilege over nearly 75% of the documents it 

previously claimed were protected from disclosure. See id.

After reviewing the remaining documents in camera, in a 

Memorandum Opinion dated December 20, 2016, the Court concluded 

that Treasury failed to provide a specific articulation of the 

rationale supporting the deliberative process privilege and 

ordered Treasury to produce to Respondents all of the documents 

over which it asserted solely the deliberative process 

privilege. Mem. Op., ECF No. 42 at 6–13. The Court further 

ordered Treasury to submit an updated in camera production and 

privilege log containing the documents withheld under the other 

three privileges. Id. at 13. 

Treasury submitted 85 documents in response to the Court’s 

Order. See Mem. Op., ECF No. 45 at 3. Relevant to this renewed 

motion to compel, Treasury asserted the presidential 

communications privilege as the basis for withholding 63 

documents from production. Id. at 4. In a Memorandum Opinion 

dated April 13, 2017, the Court concluded that the documents 

were covered by the presidential communications privilege, but 

that Respondents had demonstrated a sufficient need for the 
8 

documents to overcome the privilege. Id. at 3–11. Accordingly, 

the Court ordered production of the 63 documents over which 

Treasury had asserted the presidential communications privilege 

produced to Respondents. See Order, ECF No. 44 at 1. 

Treasury appealed the Court’s Order, and the Court of 

Appeals for the District of Columbia Circuit (“D.C. Circuit”) 

remanded the case back to this Court. U.S. Dep’t of Treasury v. 

Black, No. 17-5142, 2017 WL 6553628, (D.C. Cir. Dec. 8, 2017). 

Specifically, the D.C. Circuit remanded the case for this Court 

to “account for how the public interests in this case” differ 

from prior decisions in which courts have analyzed the 

presidential communications privilege, id. at *1, and to 

“thoroughly analyze whether [Respondents] demonstrated a need 

sufficient to overcome the privilege,” id. at *3. 

Respondents have since filed a renewed motion to compel 

challenging 61 of the 63 documents over which Treasury claims 

the presidential communications privilege.2 The documents can be 

grouped into three categories: (1) Draft memoranda from staffers 

to Dr. Lawrence Summers, the Director of the National Economic 

Council, Assistant to the President for Economic Policy, and cochair of the Presidential Task Force on the Auto Industry (“Auto 

 

2 Respondents no longer seek to compel two documents relating to 

drafts of a March 28, 2009 Presidential speech. See Renewed Mot. 

Compel, ECF No. 70 at 10 n.2. Accordingly, Respondents’ motion 

concerns only 61 documents. 
9 

Task Force”), providing updates regarding GM and Delphi; (2) 

electronic mail conversations among federal employees that 

supported Dr. Summers and the Auto Task Force (“Auto Team 

members”) concerning advice provided to President Obama 

regarding GM, Delphi, and the PBGC; and (3) personal requests 

for information by President Obama about the Delphi Salaried 

Plan, along with Treasury emails and a memorandum in response. 

Renewed Mot. Compel, ECF No. 70 at 28. Treasury filed its 

opposition to Respondents’ motion to compel, ECF. No. 74, and 

Respondents subsequently filed their reply in support, ECF No. 

75. The motion is now ripe for decision. 

II. LEGAL STANDARD 

 The presidential communications privilege is a “presumptive 

privilege” necessary to “guarantee the candor of presidential 

advisers and to provide ‘a President and those who assist him . 

. . with freedom to explore alternatives in the process of 

shaping policies and making decisions and to do so in a way many 

would be unwilling to express except privately.’” In re Sealed 

Case, 121 F.3d 729, 743 (D.C. Cir. 1997) (alterations omitted) 

(quoting United States v. Nixon, 418 U.S. 683, 708 (1974)). The 

privilege “is rooted in the need for confidentiality to ensure 

that presidential decisionmaking is of the highest caliber, 

informed by honest advice and full knowledge.” Id. at 750. This 

confidentiality is important because it is “what ensures the 
10 

expression of ‘candid, objective, and even blunt or harsh 

opinions’ and the comprehensive exploration of all policy 

alternatives before a presidential course of action is 

selected.” Id. (citation omitted). 

Although entitled to great weight because of the need for 

confidentiality, the presidential communications privilege 

should be construed as “narrowly as is consistent with ensuring 

that the confidentiality of the President’s decisionmaking 

process is adequately protected.” Id. at 752. Moreover, assuming 

arguendo a former president may assert the privilege, “such a 

claim carries much less weight than a claim asserted by the 

incumbent himself.” Dellums v. Powell, 561 F.2d 242, 247 (D.C. 

Cir. 1977). Ultimately, the application of the privilege 

“depends on a weighing of the public interest protected by the 

privilege against the public interests that would be served by 

disclosure in a particular case.” In re Sealed Case, 121 F.3d 

at 743 (citation omitted). In the context of civil discovery, a 

court must assess “the public interests at stake in determining 

whether the privilege should yield in a particular case, and 

must specifically consider the need of the party seeking 

privileged evidence.” See id. at 746. 

 The D.C. Circuit has had several occasions to discuss the 

presidential communications privilege in various circumstances. 

In Nixon v. Sirica, the D.C. Circuit discussed the application 
11 

of the privilege in the criminal context. 487 F.2d 700 (D.C. 

Cir. 1973). Sirica concerned a subpoena issued by a grand jury 

investigating the break-in at the Watergate Hotel for certain 

tape recordings of telephone conversations that had taken place 

between President Nixon and his advisors. Id. at 704–705. Nixon 

refused to produce the tape recordings asserting the 

presidential communications privilege. Id. at 705. The D.C. 

Circuit explained that the claim of privilege “depend[ed] on a 

weighing of the public interest protected by the privilege 

against the public interests that would be served by disclosure 

in a particular case.” Id. at 716. In weighing those interests, 

the Court recognized that there was a great public interest in 

preserving “the confidentiality of conversations that take place 

in the President’s performance of his official duties” in order 

to protect “the effectiveness of the executive decision-making 

process.” Id. at 717. The Court held, however, that the 

privilege was overcome because of the “showing made by the 

Special Prosecutor” in that case. Id. Specifically, the Special 

Prosecutor had made a “strong showing that the subpoenaed tapes 

contain[ed] evidence” necessary to the carrying out of a vital 

function of the grand jury which was to “indict persons when 

there is probable cause to believe they have committed crime, 

but also to protect persons from prosecution when probable cause 

does not exist.” Id. at 717. Accordingly, the Court held the 
12 

district court could order disclosure of portions of the tapes 

relevant to the scope of the grand jury investigation. Id. at 

721. 

 The Supreme Court addressed the presidential communications 

privilege in the context of a criminal case a year later in 

United States v. Nixon, 418 U.S. 683 (1974). Nixon also

concerned a subpoena by a grand jury for several tape recordings 

and documents relating to President Nixon’s conversations with 

his advisors. Id. at 688. The Court noted that President Nixon 

did not place his “claim of privilege on the ground that [the 

communications were] military or diplomatic secrets.” Id. at 

710. After determining that the public interest at stake was the 

“President’s generalized interest in confidentiality” the Court 

weighed this “generalized interest” against “the inroads of such 

a privilege on the fair administration of criminal justice.” Id.

at 711–12. In weighing these interests, the Court concluded that 

although the “interest in preserving confidentiality . . . is 

entitled to great respect . . . the allowance of the privilege 

to withhold evidence that is demonstrably relevant in a criminal 

trial would cut deeply into the guarantee of due process of law 

and gravely impair the basic function of the courts.” Id. at 

712. Accordingly, the Court remanded the case for the district 

court to determine, via in camera review, what relevant and 
13 

admissible evidence in the tapes would be released to the 

Special Prosecutor. Id. at 713–14. 

Of most relevance to this case, the D.C. Circuit first 

considered the presidential communications privilege in the 

civil context in Dellums v. Powell, 561 F.2d 242 (D.C. Cir. 

1977). Dellums concerned a subpoena for tapes and transcripts of 

White House conversations in connection with claims that 

plaintiffs were unconstitutionally detained for protesting 

American military involvement in Southeast Asia. 561 F.2d at 

244. Although not a party to the case, President Nixon moved to 

quash the subpoena under a claim of the presidential 

communications privilege arguing that the privilege was absolute 

in the civil context. Id. After taking note that President 

Nixon’s claim of privilege did not concern “a claim of a need to 

protect national security, military or diplomatic secrets,” the 

Court “reject[ed] Mr. Nixon’s contention that a formal claim of 

privilege based on the generalized interest of presidential 

confidentiality, without more, works an absolute bar to 

discovery of presidential conversations in civil litigation.” 

Id. at 245–46. 

 Rather than employing an absolute privilege, the Court 

again balanced the interests in confidentiality with that of 

disclosure. Id. at 247–48. The Court recognized that even in 

civil litigation there is “a constitutional value in the need 
14 

for disclosure in order to provide the kind of enforcement of 

constitutional rights that is presented by a civil action for 

damages, at least where . . . the action is tantamount to a 

charge of civil conspiracy among high officers of government to 

deny a class of citizens their constitutional rights.” Id. at 

247. It was of “cardinal significance” to the Court that the 

“claim of privilege [was] being urged solely by a former 

president, and there [was] no assertion of privilege by an 

incumbent president.” Id. at 247 (stating the “[a]bsence of 

support from the incumbent [president] at least indicates that 

‘the risk of impairing necessary confidentiality is 

attenuated.’” (citation omitted)). After balancing the interests 

in confidentiality against the interests in disclosure, the 

Court found that the privilege had to yield to the plaintiffs’ 

showing of need in the case. Id. at 248–49. Accordingly, the 

Court remanded the case for, among other things, in camera

review of the challenged materials by the district court to 

determine which materials would be released. Id. at 251. 

The D.C. Circuit’s most comprehensive analysis of the 

presidential communications privilege was perhaps in In re 

Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). In re Sealed Case, a 

criminal matter, concerned a grand jury subpoena for documents 

pertaining to White House Counsel’s investigation of a former 

cabinet member. Id. at 734. After surveying the Nixon cases 
15 

including Nixon, Dellums, and Sirica, the Court observed that 

these cases “all employed a balancing methodology” in which the 

“opinions balanced the public interests served by protecting the 

President’s confidentiality in a particular context with those 

furthered by requiring disclosure.” 121 F.3d at 753. However, 

since the Court’s prior precedent established that in the 

criminal context the privilege “can be overcome by a sufficient 

showing that subpoenaed evidence is needed for a criminal 

judicial proceeding” the Court focused on that inquiry. Id. 

With regard to the necessity inquiry, the Court determined 

that the necessity standard has two components: (1) “each 

discrete group of the subpoenaed materials [must] likely 

contain[] important evidence;” and (2) “this evidence is not 

available with due diligence elsewhere.” Id. at 754. The first 

component requires that “the evidence sought must be directly 

relevant to issues that are expected to be central to the 

trial.” Id. The second component requires the person requesting 

the materials to show that “this evidence, or equivalent 

evidence, is not [practicably] available from another source.” 

Id. at 759. Applying these standards, the Court held that the 

party seeking the materials made a sufficient showing of need 

for certain documents but not for others and remanded the case 

back to the district court. Id. at 763–64. 
16 

III. DISCUSSION 

The foregoing cases illustrate the difficulties presented 

in evaluating a claim of presidential communications privilege 

but provide a concrete framework for a Court to do so. With 

these cases in mind, the Court now undertakes the “difficult 

business of delineating the scope and operation of the 

presidential communications privilege” in this case. See In re 

Sealed Case, 121 F.3d at 762. The Court first balances the 

public interests at stake by weighing the interest in 

maintaining confidentiality of the information over which 

Treasury claims privilege with the interest in disclosure under 

the particular circumstances of the allegations in this case. 

The Court next determines if the Respondents have shown 

sufficient need for the materials. For the reasons stated below, 

the Court holds that the interests in disclosure in this case 

indeed do outweigh the general interest in confidentiality 

asserted by Treasury; and Respondents have shown the requisite 

need for the majority of the documents they seek. 

A. Public interests at stake 

1. Public interest in confidentiality 

 The Court’s first task is to determine the “interests 

served by protecting the President’s confidentiality in [this 

case’s] particular context.” In re Sealed Case, 121 F.3d at 753. 

The Supreme Court has effectively recognized a continuum when 
17 

analyzing the public interest in maintaining confidentiality in 

presidential communications. At one end of that continuum is a 

claim of privilege based on a “need to protect military, 

diplomatic, or sensitive national security secrets.” See Nixon, 

418 U.S. at 706; see also Sirica, 487 F.2d at 716 (noting the 

items over which President Nixon asserted the privilege did not 

contain military or state secrets). The public interest in 

maintaining confidentiality of presidential communications is at 

its strongest when the claim of privilege rests on a need to 

safeguard this type of information--information which implicates 

international and national security interests. See Nixon, 418 

U.S. at 706. Indeed, in such cases, it is difficult to imagine 

any interest in disclosure which could outweigh the interest in 

confidentiality. See id. (stating that such a claim based on 

national security interests may be subject to absolute 

privilege). 

On the other end of the continuum, in which the public 

interest in confidentiality is much weaker, is “when the 

privilege depends solely on the broad, undifferentiated claim of 

public interest in the confidentiality of [presidential] 

conversations.” Id. Although claims of the presidential 

communications privilege are “constitutionally based, and 

entitled to great weight,” Dellums, 561 F.2d at 246, 

nevertheless when the privilege is based on a generalized claim 
18 

of confidentiality “a confrontation with other values arises,” 

and a Court must weigh the competing interests of those values.

Nixon, 418 U.S. at 706. 

 Like in Dellums and Nixon, the privilege asserted by 

Treasury “is not premised on a claim of a need to protect 

national security, military or diplomatic secrets.” See, e.g., 

Dellums, 561 F.2d at 242. Rather, Treasury’s claim of privilege 

is premised on the general “needs of present and future 

Presidents to maintain the confidentiality of communications 

with their advisors.” See id. Moreover, in contrast with the 

highly sensitive information related to national security 

interests, the nature of the information Treasury seeks to 

withhold is purely commercial. As explained in the declaration 

filed by Treasury the “documents . . . as to which the 

presidential communications privilege is being asserted consist 

of [materials] that relate to the President’s decisions as to 

how the United States should address the financial distress of 

several of its large automobile corporations and protect the 

country from the potential consequences of their bankruptcy.” 

Decl. of Jennifer M. O’Connor, ECF No. 35-3 ¶ 7. 

 It is also significant that in this case the President has 

not personally asserted the privilege. See Dellums, 561 F.2d at 

247. Several D.C. Circuit cases have considered not only the 

nature of the materials claimed under the privilege but also who
19 

asserts the privilege. In Dellums, for example, the Court found 

that it was “of cardinal significance . . . [that] there has 

been no assertion of privilege by an incumbent president.” Id.

As the D.C. Circuit has explained, “[a]bsence of support from 

the incumbent at least indicates that the risk of impairing 

necessary confidentiality is attenuated.” Id. (citations and 

internal quotation marks omitted).

In this case, no President--past or present--has invoked 

the privilege for these documents, and the incumbent has not 

indicated support for this claim of privilege.3 Rather the 

former Deputy Counsel to President Obama invoked the privilege 

on “behalf of the Office of the President.” Decl. of Jennifer M. 

O’Connor, ECF No. 35-3 ¶ 4. This invocation stands on different 

ground than the invocations made in other presidential 

communications privileges cases which were expressly made either 

by a President, past or current, or made on behalf of the 

President, rather than one made on behalf of the Office of the 

President generally. See, e.g., In re Sealed Case, 121 F.3d at 

 

3 Whether a sitting President “must personally invoke the 

privilege” and whether a former President can invoke the 

privilege at all remain open questions. See Judicial Watch, Inc. 

v. Dep’t of Justice, 365 F.3d 1108, 1114 (D.C. Cir. 2004) 

(recognizing whether the president must personally invoke the 

privilege is an open question); Dellums, 561 F.2d at 245 

(assuming without deciding a former president could invoke the 

privilege but stating that such an invocation would be entitled 

to less weight). 
20 

744–46 n.16 (noting former White House Counsel’s affidavit 

stated he was specifically directed by the President to invoke 

the privilege). If a former President’s invocation is entitled 

to less weight than an incumbent, Dellums, 561 F.2d at 245, it 

follows that an invocation by the government on behalf of the 

Office of the President of a former administration, is similarly 

entitled to less weight. 

 The Court also finds substantial the considerable amount of 

time that has passed since these documents were created and the 

public nature of these documents. The documents in this case are 

intertwined with decisions made regarding the government’s auto 

bailout--nearly 10 years ago. As the Supreme Court has 

explained, “the expectation of the confidentiality of executive 

communications . . . has always been limited and subject to 

erosion over time after an administration leaves office.” Nixon 

v. Adm’r Of Gen. Servs., 433 U.S. 425, 451 (1977). 

Furthermore, the public interest in maintaining 

confidentiality is also diminished by the undisputed fact that 

there have been public disclosures already made on the subject 

of the requested documents. The interest in maintaining the 

confidentiality of conversations related to a subject, 

“substantially diminishes” when there is public testimony on 

that subject. Sirica, 487 F.2d at 715 (stating public testimony 

given related to Watergate substantially diminished the 
21 

President’s interest in maintaining confidentiality of the 

conversations related to the subject); cf. Comm. on Oversight & 

Gov't Reform, U.S. House of Rep. v. Lynch, 156 F. Supp. 3d 101, 

111-12 (D.D.C. 2016) (holding plaintiff’s need for withheld 

documents under the deliberative process privilege outweighed 

the need for confidentiality in part because the substance of 

the documents had already been made public). In this case, there 

has been considerable public testimony about Treasury’s 

decision-making process for the termination of the pension plan 

including testimony before Congress, see, e.g., Testimony, Oral 

and Written Statement of Matthew Feldman, Oversight of the 

SIGTARP Report Treasury’s Role in the Delphi Pension Bailout: 

Hearing Before the H. Subcommittee on Government Operations of 

the Committee on Oversight and Government Reform, ECF No. 30-6, 

and at least one book written by a former member of Treasury on 

the subject.4 

 Faced with these facts, Treasury repeatedly argues that the 

presidential communications privilege still applies. See, e.g., 

Treas. Opp’n, ECF No. 74 at 11. For example, Treasury argues 

that despite the fact that the vast majority of the documents 

were not viewed by the President, the privilege “applies fully . 

. . to all 61 of the documents.” Id. Treasury’s response to the 

 

4 See Steven Rattner, Overhaul: An Insider’s Account of the Obama 

Administration’s Emergency Rescue of the Auto Industry (2010). 
22 

fact that none of the documents implicate national security 

concerns is that “the privilege applies . . . to any 

conversation that takes place in the President’s performance of 

his official duties.” Id. (citation and alterations omitted). 

Treasury’s arguments miss the point. Respondents have no 

quarrel with the Court’s holding that the 61 documents 

Respondents seek are covered by the presidential communications 

privilege. See Mem. Op., ECF No. 45. The issue is the scope of 

that privilege under the particular circumstances of this case. 

See Black, 2017 WL 6553628 at *2. The Court finds that although 

the President at all times maintains a strong interest in the 

confidentiality of his or her communications, under these 

circumstances--when a broad and undifferentiated claim of 

confidentiality is invoked by the government on behalf of the 

Office of the President to protect information of a commercial 

nature--the strength of the public interest in maintaining the 

confidentiality of these documents is not particularly strong. 

2. Public interest in disclosure 

 The Court next must determine the public interest 

“furthered by requiring disclosure” under the circumstances of 

this case. In re Sealed Case, 121 F.3d at 753. The Supreme Court 

has made clear that the interests in disclosure in a civil case 

are not on equal footing as the interests in a criminal case. 

See Cheney v. United States Dist. Ct., 542 U.S. 367, 384 (2004). 
23 

“The need for information in the criminal context is much 

weightier because our historical commitment to the rule of law . 

. . is nowhere more profoundly manifest than in [the Court’s] 

view that the twofold aim of criminal justice is that guilt 

shall not escape or innocence suffer.” Id. (citations and 

internal quotation marks omitted). Therefore the “right to 

production of relevant evidence in civil proceedings does not 

have the same constitutional dimensions” as in a criminal case. 

Id. (citation and internal quotation marks omitted). 

Nevertheless, the D.C. Circuit has recognized that, although not 

as weighty, “there is also a strong constitutional value in the 

need for disclosure in order to provide the kind of enforcement 

of constitutional rights that is presented by a civil action for 

damages” when “the action is tantamount to a charge of civil 

conspiracy . . . to deny a class of citizens their 

constitutional rights. Dellums, 561 F.2d at 242; see also 

Cheney, 542 U.S. at 385 (recognizing the need for information in 

civil cases is “far from negligible”). 

 Treasury does not address the strength of the public 

interest in disclosure under the circumstances of this case but 

notes that “[h]ere, the underlying action is a civil case, not a 

criminal proceeding.” Treas. Opp’n, ECF No. 74 at 10. It is true 

that the Plaintiffs have brought a civil action, but the nature 

of the case (i.e., civil or criminal), by itself, does not end a 
24 

court’s inquiry on the issue. Dellums, 561 F.2d at 245–46 

(rejecting the argument that the presidential communications 

privilege is absolute in civil litigation). 

In Dellums, plaintiffs brought a civil action for damages 

alleging that “a policy or plan was devised by the defendants . 

. . which led to and instigated the allegedly unlawful arrest 

and detention of plaintiffs” during a protest against American 

military involvement in Southeast Asia. Id. at 248. In support 

of their claim for unconstitutional detention, Plaintiffs sought 

information related to the Nixon administration’s conversations 

in which the demonstrations were discussed. Id. The defendants 

in Dellums argued that, regardless of the necessity or relevance 

of the information sought, a claim of the presidential 

communications privilege was an absolute bar to discovery in a 

civil case. Id. at 246. The D.C. Circuit rejected such a 

sweeping interpretation of the privilege and made it clear that 

in civil actions in which a plaintiff alleges actions 

“tantamount to a charge of civil conspiracy among high officers 

of government to deny a class of citizens their constitutional 

rights” a government’s claim of privilege could yield to a 

sufficient showing of need. 561 F.2d at 245–47. 

Plaintiffs in this case have alleged in their civil action 

in Michigan that their pension plans were terminated in 

violation of ERISA and the United States Constitution because of 
25 

undue pressure exerted by Treasury to bail out the auto 

industry. Renewed Mot. Compel, ECF No. 70 at 26. They have 

alleged that Treasury pressured the PBGC to abandon its 

statutory duty, and to terminate the pensions so that GM could 

receive monetary relief in violation of the Due Process Clause 

of the Constitution. Id. at 21. In other words, they allege that 

a class of over 20,000 was sold out by the government simply to 

bail out the corporate interests of the auto industry. 

As the D.C. Circuit has explained “Congress designed ERISA 

to safeguard employees against the loss of anticipated 

retirement benefits, following decades of service.” Page v. 

PBGC, 968 F.2d 1310, 1311 (D.C. Cir. 1992). The PBGC’s role is 

“key to the congressional plan” and its function is to “meet the 

problem of plans terminated without assets sufficient to cover 

vested benefits” and to “provide for the timely and 

uninterrupted payment of pension benefits [within specified 

dollar limitations] to participants and beneficiaries under 

plans [covered by Title IV].” Id. (citing 29 U.S.C. § 1302(a)). 

Under these circumstances the Court concludes that the 

public interest in disclosure is just as strong as in Dellums. 

Like the plaintiffs in Dellums, Respondents in their civil 

action have alleged a “civil conspiracy among high officers of 

government to deny a class of citizens their constitutional 

rights.” See Dellums, 561 F.2d at 247. As stated above, the PBGC 
26 

sits as a fiduciary of pension plans and is tasked to ensure 

that the personal tragedy of pension termination is not 

considered lightly. Respondents have alleged an abdication of 

that duty for improper reasons, and a conspiracy to cover up 

these improper actions at all costs. Balanced against Treasury’s 

“broad, undifferentiated claim of public interest” in 

confidentiality, see Nixon, 418 U.S. at 707, the Court concludes 

that the interest in disclosure in this particular case 

sufficiently outweighs the interest in confidentiality. 

 This conclusion does not mean, of course, that the 

privilege must yield to any request for public disclosure 

irrespective of the need. The Court only holds that in these 

circumstances the proponent of a subpoena may defeat such a 

broad claim of privilege with a sufficient showing of need in 

the litigation. See Dellums, 561 F.2d at 248 (stating that a 

balance in favor of disclosure does not open the door to 

production, but “only to consideration whether the claim is 

overcome by a showing of other need, here litigat[ion] need.”). 

The Court therefore next turns to the issue of necessity. 

B. Showing of need 

As the D.C. Circuit has instructed, a showing of need in 

this case entails two components: (1) Respondents “bear the 

burden to demonstrate with ‘specificity’ ‘that each discrete 

group of the subpoenaed materials likely contains important 
27 

evidence’” and (2) ”bear the further burden of demonstrating 

that the subpoenaed ‘evidence is not available with due 

diligence elsewhere.’” Black, 2017 WL 6553628 at *2 (quoting In 

re Sealed Case, 121 F.3d 754–55, 756.)5 The Court addresses each 

issue in turn. 

1. Importance of the evidence sought 

Under the first component of the need inquiry, “[a] party 

seeking to overcome a claim of presidential privilege must 

demonstrate . . . that each discrete group of the subpoenaed 

materials likely contains important evidence.” In re Sealed 

Case, 121 F.3d at 754. This component means “that the evidence 

sought must be directly relevant to issues that are expected to 

be central to the trial.” Id. Requests for documents that are 

“tangentially relevant or would relate to side issues” would not 

satisfy this component of the need inquiry; the same holds true 

when a “claim that subpoenaed materials will contain such 

evidence represents mere speculation.” Id. (citations omitted). 

Discovery in this case is limited to Count Four of 

Respondents’ complaint; and was defined by the Michigan Court as 

follows: 

In terms of addressing the scope of discovery for 

purposes of entering a scheduling order – [t]he Court’s 

 

5 The parties agree that the standard of need as identified in 

Dellums and rearticulated in Black should govern the showing of 

need in this case. See Renewed Mot. ECF No. 70 at 23; Treas. 

Opp’n, ECF No. 74 at 9–10. 
28 

initial focus, keeping the above case law in mind, is on 

Count 4 and whether termination of the Salaried Plan 

would have been appropriate in July 2009 if, as 

Plaintiffs contend, Defendants were required under 29 

U.S.C. § 1342(c) to file before this court “for a decree 

adjudicating that the plan must be terminated in order 

to protect the interests of the participants or to avoid 

any unreasonable deterioration of the financial 

condition of the plan or any unreasonable increase in 

the liability of the fund.” 

Black v. PBGC, No. 09-cv-13616 (E.D. Mich. Sept. 1, 2011), ECF 

No. 193 at 3–4. To that end, the Court allowed the parties to 

engage in discovery related to the substantive component of 

Count Four--whether the PBGC had met the statutory requirements 

for termination under Section 1342(a). Accordingly, discovery is 

limited to whether the PBGC terminated the plan because it had 

“not met the minimum funding standard,” was “unable to pay 

benefits when due,” or “the possible long-run loss of the 

corporation with respect to the plan may reasonably be expected 

to increase unreasonably if the plan is not terminated.” 29 

U.S.C § 1342(a)(1)-(4). 

As stated above, Respondents’ theory of the case is that 

the termination of the pension plan “occurred as the result of 

politics, with Treasury having impermissibly pressured the PBGC 

to acquiesce in the Plan’s termination as part of Treasury’s 

political goals in restructuring the auto industry in general, 

and GM in particular.” Renewed Mot. Compel, ECF No. 70 at 10. 

Therefore, the issues the Respondents expect to be central at 
29 

trial include whether GM could have reassumed the Salaried Plan 

thereby continuing the pension plan and avoiding termination, 

and whether Treasury influenced the PBGC to terminate the plan 

despite its viability through GM. See id. at 27–28. 

Respondents’ discovery request can be grouped into three 

categories: (1) Draft memoranda from staffers to Dr. Lawrence 

Summers, the Director of the National Economic Council, 

Assistant to the President for Economic Policy, and co-chair of 

the Auto Task Force; (2) electronic mail conversations among 

Auto Team members concerning advice provided to President Obama; 

and (3) personal requests for information by President Obama 

along with Treasury emails and a memorandum in response. 

The first group of documents, “[d]raft memoranda from 

staffers to Dr. Lawrence Summers” providing updates regarding GM 

and Delphi, comprise the majority (53 of 61) of the withheld 

documents.6 These documents are iterations of 13 memoranda from 

Autoteam staffers to Dr. Summers written between the months of 

February and August 2009. The memos in this group relate to 

Treasury’s impressions on GM and Chrysler restructuring plans, 

Treas. Original Priv. Log, ECF No. 35-5 at 140; Delphi’s 

 

6 See Treas. Revised Privilege Log, ECF No. 51-2 Nos. 67, 72, 84, 

94, 275, 560, 593, 596, 599, 601, 603, 605, 611, 623, 627, 629, 

631, 633, 638, 668, 670, 672, 674, 676, 692, 758, 759, 760, 761, 

762, 766, 770, 777, 849, 856, 859, 860, 863, 944, 948, 950, 956, 

1006, 1089, 1091, 1094, 1152, 1166, 1168, 1217, 1219, 1221, and 

1223. 
30 

liquidity issues and possible ramifications of Delphi’s 

shutdown, id. at 152-54; and plans for GM’s reorganization and 

updates on GM negotiations, id. at 178. 

The Court finds that Respondents have shown that the 

documents requested in this first group likely contain important 

evidence. These memoranda cover Treasury’s views on several 

topics that are relevant to Respondents’ theory of the case. 

Furthermore, Respondents’ discovery efforts have revealed that 

at the time the salary plan was terminated it was a “relatively 

well-funded plan.” Renewed Mot., ECF No. 70 at 25 (citing Watson 

Wyatt Actuarial Certification, ECF No. 19-5 at 2). Respondents 

have also discovered the fact that, prior to Treasury’s 

proactive involvement, the PBGC was advocating for a 

circumstance under which the pension plan remained in effect. 

See, e.g., D. Cann. Dep. Tr., ECF No. 11-6, 67:6–14 (stating 

PBGC was “cheerleading” for the transfer of the plan). A 

critical issue in the Michigan action will be the reason for the 

sudden change in strategy. The documents in the first group 

which relate to Treasury’s interactions with the PBGC and its 

impressions about “Delphi and its pensions liabilities” as well 

as Treasury’s “impressions . . . on GM and Chrysler 

restructuring plans,” ECF No. 70 at 29, are documents that go to 
31 

the heart of that issue and are clearly relevant to Respondents’ 

claim of undue influence by Treasury.7

The second group consists of four documents which are a 

series of email chains from March 28, 2009 to May 28, 2009.8 The 

emails relate to discussions between the Auto Team and Dr. 

Summers about GM and Delphi (No. 621); a presidential 

announcement regarding GM’s restructuring (Nos. 610 and 776); 

and emails relating to the disparity between GM and Toyota’s 

labor rates (No. 358). The Court holds that document numbers 

610, 621 and 776 in this group likely contain important 

evidence. Although not dispositive, the timing of the documents 

is important: They were created at a time during which there was 

a mediation with important parties including the PBGC, Delphi, 

and GM relating to the bankruptcy proceedings. See House Dep. 

Tr., ECF No. 11-8, at 143:9–22. Critically, these documents 

relate to GM’s restructuring and there is no question that the 

resolution of the pension fund was a significant issue related 

to GM’s restructuring through the bankruptcy. 

 

7 The Court notes that this conclusion is further supported by 

Plaintiff’s ex parte submission. Without discussing the contents 

of the submission, it suffices to say that discovery has 

revealed that this category of information is relevant to 

Respondents’ claims. 

8 See Treas. Revised Privilege Log, ECF No. 51-2 Nos. 358, 610, 

621, and 776. 
32 

Document number 358, however, relates to “the cost gap 

between GM and Toyota labor rates;” and there is no indication, 

other than the timing of these emails, that the evidence is 

related to a central issue at trial. Respondents argue that the 

timing of these emails, May 26 through 28, is sufficient. Under 

that logic, however, Respondents would be entitled to any email 

written by the Auto Team or Treasury around that time period 

regardless of the email’s relevance to the issues in this case. 

The issues regarding “the cost gap between GM and Toyota labor 

rates” without some connection to GM’s restructuring or the 

pension fund, is the sort of “tangentially relevant” request for 

documents that the D.C. Circuit has instructed will not meet the 

important evidence prong of the needs test.9 See In re Sealed 

Case, 121 F.3d at 754 (stating “tangentially relevant” documents 

or evidence that “would relate to side issues” would not satisfy 

the need requirement). Accordingly, the Court finds that only 

document numbers 610, 621 and 776 in this group are likely to 

contain important evidence. 

 

9 Respondents’ ex parte submission related to this request does 

not change the Court’s conclusion. As it pertains to No. 358, 

the submission merely repeats the fact that the timing of the 

emails coincided with the mediation suggest the emails likely 

contain important evidence. The Court disagrees, timing alone 

cannot transform documents about “labor rates” to evidence about 

the issues central to Respondents’ civil action. 
33 

The third group consists of five documents that are related 

to a draft letter from President Obama containing a request to 

Dr. Summers regarding the Delphi Salaried plan.10 The documents 

at issue in this group likely relate to a “Draft memorandum 

regarding [the PBGC’s] decision to take over the salaried and 

hourly pension plans of Delphi.” Treas. Original Privilege Log, 

ECF No. 35-5 at 140. These documents relate to the decisions 

about the salaried pension fund that are significant to the 

claims in the civil action. The Court finds that all the 

documents in this category meet the important evidence 

component. 

 In short, with the exception of document number 358, the 

email string relating to automotive labor rates, the Court finds 

the evidence sought in the three categories are “directly 

relevant to issues that are expected to be central to the 

trial.” In re Sealed Case, 121 F.3d at 754. And therefore, 

those documents meet the first component of the need inquiry. 

2. Availability of the evidence elsewhere 

Under the second component of the need inquiry a party 

challenging the claim of privilege must demonstrate “that [the] 

evidence is not available with due diligence elsewhere.” In re 

Sealed Case, 121 F.3d at 754. This component “reflects [Supreme 

 

10 See Treas. Revised Privilege Log, ECF No. 51-2 Nos. 763, 764, 

765, 766, and 767. 
34 

Court precedent] that privileged presidential communications 

should not be treated as just another source of information.” 

Id. at 755. To meet this standard, “[e]fforts should first be 

made to determine whether sufficient evidence can be obtained 

elsewhere, and the subpoena’s proponent should be prepared to 

detail these efforts and explain why evidence covered by the 

presidential privilege is still needed.” Id. 

 Respondents argue that these documents are not “just 

another source of information” but rather the only source of 

information outlined above. Renewed Mot., ECF No. 70 at 39–42. 

Respondents point out the fact that they have conducted 

discovery from all other key parties in this case and have not 

received information that speaks to the issues related to the 

subjects in their discovery request. Id. at 39. Respondents also 

note that the PBGC interacted with Treasury almost exclusively 

through Joe House, the Director of the Department of Insurance 

Supervision and Compliance at the PBGC, and Matthew Feldman, a 

member of the Auto Team at Treasury. And that Mr. House failed 

to recall anything of significance related to Treasury’s 

involvement with the PBGC during his deposition in the civil 

action. Renewed Mot., ECF No. 70, at 39–40 (citing ECF No. 11 at 

19-20 and n.10 (noting approximately 60 instances in Mr. House’s 

deposition transcript where he states his inability to recall 

events related to Delphi’s plans)). Last, Respondents argue that 
35 

information related to Treasury’s Auto Team’s determination that 

GM could not reassume the pension plans, an issue of critical 

importance to its claims, is uniquely in the possession of 

Treasury. Renewed Mot., ECF No. 70 at 41–42. 

Treasury’s lone response is that Respondents have scheduled 

a deposition of Mr. Feldman, a member of the Auto Team, and can 

question him about Treasury’s influence into PBGC’s pension 

negotiations. Treas. Opp’n, ECF No. 74 at 8–9. Therefore, 

Treasury argues, the information is available from another 

source. But, as Respondents point out, a deposition almost a 

decade after the events that give rise to the claims in this 

case is not equivalent to documentary evidence prepared at the 

time of the controversy. See Dellums, 561 F.2d at 248. 

(affirming district court ruling which noted that a deposition 

is “far more inferior to the actual contemporaneous” documentary 

evidence related to the allegations). 

The Court concludes that Respondents have met their burden 

in showing that the evidence they seek is “not available with 

due diligence elsewhere.” See In re Sealed Case, 121 F.3d at 

755. Respondents have had considerable difficulties obtaining 

information related to Treasury’s interactions with the PBGC 

vis-à-vis the termination decision. Deposition attempts have 

failed to uncover this sort of evidence because the person who 

would have this information, Mr. House, simply cannot remember. 
36 

Respondents have run into similar roadblocks in their attempts 

to obtain this sort of information from the other key players in 

this case because these parties do not have the information 

Respondents seek. 

Respondents have made a showing of substantial need for 

overcoming the general claim of privilege asserted by Treasury. 

The D.C. Circuit has explained that upon a sufficient showing of 

need the Court is to review in camera the subpoenaed documents 

to “identify and release specific items of evidence that might 

reasonably be relevant to” the claims at issue in the case. In 

re Sealed Case, 121 F.3d at 762. Therefore, this Court will 

order the following documents to be filed for in camera review: 

67, 72, 84, 94, 275, 560, 593, 596, 599, 601, 603, 605, 610, 

611, 621, 623, 627, 629, 631, 633, 638, 668, 670, 672, 674, 676, 

692, 758, 759, 760,761, 762, 763, 764, 765, 766, 767, 770, 776, 

777, 849, 856, 859, 860, 863, 944, 948, 950, 956, 1006, 1089, 

1091, 1094, 1152, 1166, 1168, 1217, 1219, 1221, and 1223. 

Treasury should provide a justification sheet for each document 

explaining why the document does not contain evidence that may 

be reasonably relevant to the claims in this case. 

IV. CONCLUSION 

This case calls upon the Court to “strike a balance 

between the twin values of transparency and accountability 

of the executive branch on the one hand, and on the other 
37 

hand, protection of . . . the President’s ability to obtain 

candid, informed advice.” See Judicial Watch, Inc. v. Dep’t 

of Justice, 365 F.3d at 1112. The allegations in the civil 

action in this case are grave, and the necessity for the 

subpoenaed materials dire. Under these circumstances, 

Treasury’s broad, undifferentiated claim of privilege must 

yield to the Respondents’ showing of need for the majority 

of documents Respondents seek. Accordingly, Respondents’ 

renewed motion to compel is GRANTED in PART and DENIED in 

PART. An appropriate Order accompanies this Memorandum 

Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

United States District 

October 15, 2018