Case 1:04-cv-00106-EJD Document 214 Filed 12/19/07 Page 1 of 14
`
` In the United States Court of Federal Claims
`No. 04-106 C
`
`
`
`(Filed: December 19, 2007)
`
`***************************************
`
`*
`DAIRYLAND POWER COOPERATIVE,
`* Presidential communications
` * privilege; compelling document
` * production; RCFC 37(a)(2)
` *
`
`**
`
`**
`
`**
`
`v.
`
`THE UNITED STATES,
`
`Defendant.
`
`***************************************
`
`Jerry Stouck, Greenberg Traurig LLP, Washington, DC, counsel of record for Plaintiff; of
`counsel were Robert Shapiro and Kevin Stern, Greenberg Traurig LLP, Washington, DC.
`
`Russell A. Shultis, Commercial Litigation Branch, Civil Division, United States Department of
`Justice, Washington, DC, counsel of record for Defendant, with whom were Peter D. Keisler,
`Assistant Attorney General, Jeanne E. Davidson, Director, and Harold D. Lester, Jr., Assistant
`Director, United States Department of Justice, Washington, DC; of counsel was Jane K. Taylor,
`Office of General Counsel, Department of Energy, Washington, DC, Alan J. Lo Re, Senior Trial
`Counsel, and Patrick B. Bryan, Joshua E. Gardner, and Scott C. Slater, Trial Attorneys, United
`States Department of Justice, Washington, DC.
`
`
` ________________________
`
`OPINION AND ORDER
` ________________________
`
`DAMICH, Chief Judge.
`
`This discovery dispute arises from one of several cases that concern the “Standard
`Contract” between nuclear utilities and the U.S. Department of Energy (“DOE”) for disposal of
`1
`
`“Standard Contract for Disposal of Spent Nuclear Fuel And/Or High-Level Radioactive
`1
`Waste,” published at 10 C.F.R. § 961.11. The Standard Contract served as a template for the
`individual contracts between the utilities and the U.S. Department of Energy. In every material
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`

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`Case 1:04-cv-00106-EJD Document 214 Filed 12/19/07 Page 2 of 14
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`spent nuclear fuel (“SNF”) and/or high-level radioactive waste (“HLW”). Plaintiff Dairyland
`Power Cooperative (“Dairyland”) moves this Court, pursuant to Rule 37(a)(2) of the Rules of the
`Court of Federal Claims (“RCFC”), to compel Defendant United States (“the Government”) to
`produce in unredacted form five documents that the Government has completely redacted
`pursuant to the presidential communications privilege.
`
`In addition to responding to this motion, the Government has cross-moved the Court to
`enter a protective order prohibiting Dairyland from seeking to compel the production of the five
`subject documents absent a ruling by the Court that Dairyland has met initial burdens of
`demonstrating a heightened need for the same documents in accordance with the U.S. Supreme
`Court’s decision in Cheney v. United States District Court for the District of Columbia, 542 U.S.
`367 (2004). Although Dairyland, pursuant to an order of this Court, has filed a statement
`detailing its purported need for the documents, the Government argues that the statement does
`not meet the burden Cheney prescribed; therefore, the Government does not need to formally
`respond to Dairyland’s motion with an official, particularized assertion of the presidential
`communications privilege by White House officials at this time, much less produce the
`documents. Nevertheless, to the extent that the Court finds that Dairyland has met the standards
`Cheney articulated, the Government contends that the Court should allow White House officials
`to come forward with a formal invocation of the presidential communications privilege.
`
`For the reasons stated herein, the Court holds in abeyance a full decision on Dairyland’s
`motion to compel production of the five subject documents. In addition, the Court ORDERS the
`Government to file a formal affidavit reflecting a formal White House invocation of the
`presidential communications privilege over the documents and to submit the documents to the
`Court in unredacted form for in camera review. The Government’s cross-motion for a protective
`order is consequently DENIED.
`
`I. BACKGROUND
`
`Dairyland’s motion, filed on September 18, 2007, has arisen in the context of discovery
`over the issue of damages for the Government’s breach of the Standard Contract. On June 29,
`2007, the Court ordered the Government to produce certain documents it had withheld from
`Dairyland on deliberative process privilege grounds. Dairyland Power Coop. v. United States,
`77 Fed. Cl. 330 (2007). Five of these documents, which the Government produced on July 20,
`2007, were completely redacted pursuant to assertions of the presidential communications
`privilege.
`
`As a result, Dairyland moved this Court to compel production of the five documents in
`unredacted form, arguing that the Court’s opinion on the deliberative process privilege had not
`carved out an exception for redactions under the presidential communications privilege.
`Dairyland’s Motion to Compel Production of “Presidential Communications” Documents (“Pl.’s
`
`respect, there is no difference between the Standard Contract and Dairyland's contract.
`
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`Case 1:04-cv-00106-EJD Document 214 Filed 12/19/07 Page 3 of 14
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`Mot.”) at 3. In any event, Dairyland continued, the Government had failed to indicate the
`identity of the Government official asserting the privilege and the authority by which he or she
`had made the assertion. Id. Finally, Dairyland maintained that the Court’s opinion on the
`Government’s invocation of the deliberative process privilege established that Dairyland had
`demonstrated a sufficient need for the documents at issue to overcome the presidential
`communications privilege. Id. at 4.
`
`During briefing for this motion and in connection with a request for an enlargement of
`time in which to file its response, the Government sought an order from the Court requiring
`Dairyland to first meet the burden, which the Government claimed Cheney articulated, of
`demonstrating a particularized need for the subject documents prior to “shifting the burden upon
`the White House to formally respond to Dairyland’s motion to compel.” Defendant’s Opposition
`to Plaintiff’s Motion to Compel Production of Documents Withheld Pursuant to the Presidential
`Communications Privilege, and Cross-Motion for a Protective Order (“Def.’s Resp.”) at 6. In
`considering the Government’s request, however, the Court adopted the procedural guidance set
`forth in In re Sealed Case (“Sealed Case”), 121 F.3d 729 (D.C. Cir. 1997), which held that a
`party seeking to overcome the presidential communications privilege must both establish that the
`materials sought contained important evidence and that the evidence in the materials was not
`available with due diligence elsewhere. Order (October 17, 2007) at 1-2 (citing Sealed Case, 121
`F.3d at 754). The Court, then, “for the sake of clarity,” ordered Dairyland to submit “a statement
`of need for the documents and why the evidence in the documents [was] not available with due
`diligence elsewhere.” Id. at 2. However, the Court concluded that its decision on the
`Government’s invocation of the deliberative process privilege established that Dairyland had met
`the first of the requirements that Sealed Case set out, namely, the “likelihood of containing
`important evidence.” Id. According to Sealed Case, a “likelihood of containing important
`evidence” means that “the evidence sought must be directly relevant to issues that are expected to
`be central to the trial.” Sealed Case, 121 F.3d at 754.
`
`Pursuant to this order, Dairyland, on October 18, 2007, submitted a statement of need
`supporting its request for the subject documents under the Sealed Case criteria. Dairyland’s
`Statement of Need for Documents Withheld on Claims of Presidential Communications Privilege
`(“Dairyland’s Statement of Need”). In further briefing regarding Dairyland’s motion, however,
`the Government continued to argue that Cheney established the appropriate standard for
`overcoming the presidential communications privilege. See Def.’s Resp. at 9-15. Dairyland’s
`Statement of Need, the Government continued, satisfied neither the guidelines set by Cheney nor
`Sealed Case. Id. at 14-20.
`
`The Government also argues that, to the extent the Court finds that Dairyland has met its
`initial burden of heightened need for the subject documents under Cheney, “the appropriate step
`would be for the Court to allow the White House, following the Court’s finding, to come forward
`with a formal invocation of the presidential privilege.” Def.’s Resp. at 21. Moreover, if the
`Court finds that the White House “has not yet properly asserted the presidential communications
`privilege in this instance, the White House should nonetheless be afforded the opportunity to
`provide a suitable affidavit after the Court’s finding of heightened necessity, that complies with
`
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`Case 1:04-cv-00106-EJD Document 214 Filed 12/19/07 Page 4 of 14
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`the prerequisites for a proper invocation of the privilege.” Id. (citations omitted).
`
`Dairyland contends that whether the Court should require such a formal invocation is
`irrelevant. “If the Court agrees with Dairyland that it has already established sufficient need for
`the documents to overcome a presidential communications privilege claim, the only effect of
`providing the Government with an opportunity to provide a formal invocation would be to
`further delay discovery to which Dairyland has been entitled.” Dairyland’s Reply on Motion to
`Compel Production of Documents Withheld on Claim of Presidential Communications Privilege
`and Opposition to Motion for a Protective Order (“Pl.’s Reply”) at 7.
`
`The parties completed briefing on both Dairyland’s motion to compel and the
`Government’s cross-motion for a protective order on November 21, 2007.
`
`II. DISCUSSION
`
`The Court agrees with the Government that, in the case of a discovery request aimed at the
`President and his close advisors, the White House need not formally invoke the presidential
`communications privilege until the party making the discovery request has shown a heightened need
`for the information sought. This is the teaching of both Cheney and Sealed Case. Therefore, the
`issue here is whether Dairyland’s Statement of Need established such a heightened need.
`
`The Government urges the Court to apply a test in the Cheney decision (that is actually from
`United States v. Nixon), namely that Dairyland must “satisfy exacting standards of ‘(1) relevancy;
`(2) admissibility; and (3) specificity.’” Cheney, 542 U.S. at 386 (quoting United States v. Nixon, 418
`U.S. 683, 700 (1974)). The Government seems to prefer this test to that found in Sealed Case,
`although this Court is unable to clearly discern from the Government’s briefs why this is so. The
`Government does not argue that Sealed Case was overruled by Cheney. Indeed, in its reply to
`Dairyland’s opposition to its cross-motion for a protective order, the Government cites with approval
`American Historical Association v. National Archives and Records Administration (“AHA”), 402
`F.Supp.2d 171 (D.D.C. 2005), which discusses Nixon, Sealed Case, and Cheney as if they were all
`good law. Defendant’s Reply to Plaintiff’s Opposition to the Government’s Cross-Motion for a
`Protective Order Regarding Plaintiff’s Motion to Compel Production of Documents Withheld
`Pursuant to the Presidential Communications Privilege (“Def.’s Reply Concerning Cross-Mot.”) at
`10 (citing AHA, 402 F.Supp.2d at 179, 181-84).
`
`The Court’s order obliging Dairyland to file its Statement of Need, however, was based on
`Sealed Case, which, but for the Government’s argument in favor of the Nixon/Cheney test, the Court
`would naturally apply to determine the Statement’s sufficiency. Thus, the Court would first have
`determined whether Dairyland had demonstrated that materials over which the privilege was asserted
`likely contained evidence directly relevant to issues expected to be central to trial and then
`determined whether such evidence was available with due diligence elsewhere. If this Court found
`that Dairyland had satisfied these standards, it would have proceeded to review the documents in
`camera to excise non-relevant material and release the documents’ relevant contents. Id. at 745.
`
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`As already mentioned, this Court was unable to discern in the Government’s briefs a clear
`argument why the Nixon/Cheney test should displace the Sealed Case test. The mere fact that
`Cheney is a U.S. Supreme Court decision that was issued later than Sealed Case is not enough, since
`the two decisions could very well be reconciled, as seems to have been done in AHA. Furthermore,
`relevance seems to be a feature of both tests. And, although specificity is not in the Sealed Case test,
`Dairyland may have satisfied this element anyway, as it seeks only five documents that are clearly
`described. This leaves only the admissibility prong of the Nixon/Cheney test in play. (The Court
`presumes that the Government would have no objection to adding the Sealed Case requirement that
`the plaintiff show that the information it seeks is not available elsewhere.)
`
`A. Cheney
`
`The precise holding of the Cheney decision is somewhat difficult to determine, and assessing
`the role that Nixon plays in the opinion complicates the inquiry. The Cheney case began in the U.S.
`District Court for the District of Columbia when two public interest organizations, the Sierra Club
`and Judicial Watch, filed suit, alleging that the National Energy Policy Development Group
`(NEPDG) had failed to comply with the procedural and disclosure requirements of the Federal
`Advisory Committee Act (FACA). The NEPDG was established by President George W. Bush to
`develop a national energy policy and was composed of high-ranking government officials, with Vice
`President Richard Cheney serving as chairman. FACA provides an exemption for committees
`composed solely of federal government officers or employees, but the plaintiffs alleged that non-
`federal employees had participated in meetings of the NEPDG. See Cheney, 542 U.S. at 372-74.
`
`The Government argued that “to disregard the exemption and apply FACA to the NEPDG
`would violate principles of separation of powers and interfere with the constitutional prerogatives
`of the President and the Vice President.” Id. at 375. The District Court expressed the separation of
`powers issue in this way:
`
`The constitutional question suggested by this case is whether Congress can pass a law
`granting the public access to the deliberative process of a formally constituted group
`of the President's advisors when at least one of those advisors is a private individual
`without violating Article II. The application of FACA to this group, argue
`defendants, interferes with the President's constitutionally protected ability to receive
`confidential advice from his advisors, even when those advisors include private
`individuals.
`
`Judicial Watch v. Nat’l Energy Policy Dev. Group, 219 F.Supp.2d 20, 44 (D.D.C. 2002).
`
`The District Court deferred ruling on this issue and allowed the plaintiffs to conduct “tightly-
`reined” discovery to ascertain whether non-federal government employees regularly participated in
`the activities of the NEPDG. If they did not, then the Court could rule for the Government on
`statutory grounds rather than join the separation of powers issue. The District Court appreciated that
`the discovery itself might raise serious constitutional problems, but it felt that these could be
`resolved pursuant to an assertion of executive privilege and that resolving the matters raised by an
`
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`assertion of executive privilege would pose a less serious constitutional issue than the separation of
`powers. See id. at 53-55. The Government then sought a writ of mandamus to vacate the discovery
`2
`order.
`
`The U.S. Court of Appeals for the District of Columbia Circuit dismissed the petition for a
`writ of mandamus. The dismissal was based on the ground that alternative avenues for relief
`remained available. In re Cheney, 334 F.3d 1096, 1103-05 (D.C. Cir. 2003). Citing United States
`v. Nixon, the D.C. Circuit held that the Government, to protect against intrusion into the President’s
`prerogatives, must first assert the executive privilege “with particularity.” Id. at 1104. It
`characterized the separation of powers argument as–at that time–“hypothetical.” Id. at 1105.
`Although the District Court had called for “tightly-reined” discovery, the D.C. Circuit stated that the
`discovery request was overly broad, but still placed the burden of invoking the privilege and filing
`objections to the discovery orders with “detailed precision” on the Government. Id.
`
`The U.S. Supreme Court vacated the judgment of the D.C. Circuit. The Supreme Court felt
`that the D.C. Circuit’s reliance on Nixon was misplaced, because the need for information in the
`criminal context was weightier than in a civil context. Cheney, 542 U.S. at 384. Further, it noted:
`“A party’s need for information is only one facet of the problem. An important factor weighing in
`the opposite direction is the burden imposed by the discovery orders.” Id. at 385. Finally, it
`observed that “the narrow subpoena orders in [Nixon] stand on an altogether different footing from
`the overly broad discovery requests approved by the District Court in this case.” Id. at 386.
`
`In discussing Nixon, the Court noted that: (1) the criminal subpoenas were required to satisfy
`“exacting standards” of relevancy, admissibility, and specificity; (2) subpoenas were not a means of
`discovery; (3) the burden was on the party requesting the information; and (4) the Court in Nixon
`“addressed the issue of executive privilege only after having satisfied itself that the special
`prosecutor had surmounted these demanding requirements.” Id. at 386-87. Importantly, the Cheney
`
`Judicial Watch stated:
`
`2 [
`
`T]he breadth and scope of the constitutional issue raised by applying the
`requirements of FACA to advisory committees established by the President
`dwarfs the particular, specific questions that will be raised by a very tightly-
`reigned discovery process. Whether revealing a particular document or piece of
`information will impermissibly interfere with the President's constitutional
`authority is a much more narrow inquiry than whether the application of all the
`FACA procedural requirements to the deliberative process of Presidential advisors
`will violate the Constitution. Rather than address this broad constitutional
`question in a factual vacuum, this Court will address the particular questions
`generated by discovery requests.
`
`Judicial Watch, 219 F.Supp.2d at 54.
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`Court then went on to say: “The very specificity of the subpoena requests serves as an important
`safeguard against unnecessary intrusion into the operation of the Office of the President.” Id. at 387.
`
`Nowhere in the opinion does the Court adopt the “exacting standards” of Nixon as such and
`apply them to the circumstances of Cheney. It is fair to say, however, that the thrust of the Court’s
`consideration of Nixon is that an even more exacting standard should be applied in civil discovery
`disputes where the scope of the discovery request is very broad.
`
`The Supreme Court opinion dwells on the breadth of the discovery request in Cheney. As
`has already been noted, the D.C. Circuit found the discovery request to be overly broad. The Cheney
`Court was even more dramatic, characterizing the discovery requests as “ask[ing] for everything
`under the sky.” Id. The Court also observed that not only was the Request for Production of
`3
`Documents broad, but also that the “‘First Set of Interrogatories’ are [sic] similarly unbounded in
`scope.” Id. at 388. Indeed, the breadth of the discovery requests in Cheney appeared to be a
`leitmotif of the opinion. For example: “Given the breadth of the discovery requests in this case
`compared to the narrow subpoena orders in [Nixon], our precedent provides no support for the
`proposition that the Executive Branch ‘shall bear the burden’ of invoking executive privilege with
`sufficient specificity and of making particularized objections.” Id. at 388 (citation omitted)
`(emphasis added). And: “[The discovery requests] provide respondents all the disclosure to which
`they would be entitled in the event they prevail on the merits, and much more besides.” Id. Further:
`
`The discovery request at issue in Cheney sought:
`
`3 1
`
`. All documents identifying or referring to any staff, personnel, contractors,
`consultants or employees of the [NEPDG].
`
`2. All documents establishing or referring to any Sub-Group [of the NEPDG].
`
`3. All documents identifying or referring to any staff, personnel, contractors,
`consultants or employees of any Sub-Group.
`
`4. All documents identifying or referring to any other persons participating in the
`preparation of the Report or in the activities of the [NEPDG] or any Sub-Group.
`
`5. All documents concerning any communication relating to the activities of the
`[NEPDG], the activities of any Sub-Groups, or the preparation of the Report ....
`
`6. All documents concerning any communication relating to the activities of the
`[NEPDG], the activities of Sub-Groups, or the preparation of the Report between
`any person ... and [a list of agencies].
`
`Cheney, 542 U.S. at 387.
`
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`“In these circumstances, Nixon does not require the Executive Branch to bear the onus of critiquing
`the unacceptable discovery requests line by line.” Id. (emphasis added).
`
`In addition to the breadth of the discovery requests, the Court found that the Government
`objected to the scope of the requests but was ignored. Thus, other avenues were open to the District
`Court short of forcing the Government to invoke executive privilege. The Court noted with approval
`the statement in United States v. Poindexter, 727 F.Supp. 1501 (D.D.C. 1989): “‘[I]t is undesirable
`as a matter of constitutional and public policy to compel the President to make his decision on
`privilege with respect to a large array of documents.’” Cheney, 542 U.S. at 390 (quoting Poindexter,
`727 F.Supp. at 1503). It observed that the Poindexter court “decided to narrow, on its own, the
`scope of the subpoenas to allow the Executive ‘to consider whether to invoke executive privilege
`with respect to...a possibly smaller number of documents following the narrowing of the
`subpoenas.’” Id. (quoting Poindexter, 727 F.Supp. at 1504).
`
`In sum, the Court in Cheney: (1) did not adopt a particular test for use in civil case discovery
`disputes; (2) emphasized the overbreadth of the discovery requests at issue; (3) noted that the trial
`court did not consider the overbreadth objections of the Government; and (4) relieved the
`Government of the burden of asserting executive privilege with particularity before the issue of
`separation of powers was joined.
`
`B. Sun Oil
`
`The U.S. Court of Claims had occasion to address what it called “presidential privilege” in
`Sun Oil Company. v. United States, 206 Ct. Cl. 742, 514 F.2d 1020 (1975). This decision was post-
`Nixon, but pre-Cheney. The case differs from Cheney and Sealed Case in that it concerned a former
`President (Nixon), but this issue was not the focus of the decision–the court presumed that the
`privilege would apply to him. Although what the opinion says may have been superseded by
`Cheney, insofar as Cheney is confusing about the significance of Nixon, Sun Oil presents another
`interpretation–and one in a civil case. (In essence, it is the Nixon test that the Government would
`have this Court apply to Dairyland’s Statement of Need.)
`
`At issue in Sun Oil were four documents, which, after having been requested in discovery,
`were withheld by former President Nixon under a formal, but general, claim of privilege. Some
`thirty other documents “from the Executive Department” were provided to plaintiffs either
`voluntarily or by court order after in camera inspection by the trial judge. Sun Oil, 514 F.2d at 1021.
`Plaintiffs sued the United States for denying an application for the erection of an oil drilling platform
`on an area of the Santa Barbara channel off the coast of California that the plaintiffs had leased from
`the United States. Id. As the court put it, “[p]laintiffs seek to ascertain through the discovery
`process who made the decision to deny their application to proceed with [the platform], and why it
`was denied.” Id.
`
`The court addressed former President Nixon’s argument that the plaintiffs had made “no
`showing of necessity sufficient to support” the discovery. Id. at 1022. In discussing the Nixon case,
`the Court of Claims noted that the Supreme Court had held that the claim of executive privilege was
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`not absolute and concluded: “We think that the same sort of balancing process would be applicable
`to an incumbent President’s claim of privilege in a civil case, albeit the burden on the litigant seeking
`discovery might be heavier.” Id. at 1024. The court invoked a rule that it considered to be long-
`established, holding that “where a demonstrated need for documents sought is clearly sufficient, on
`balance, to override a claim of privilege, the documents must be produced.” Id.
`
`The four documents in question, as described in the general assertion of privilege, consisted
`of two memos between presidential aides and two from presidential aides to the President “allegedly
`refining still further the options believed open for ultimate presidential consideration and decision.”
`Id. at 1025. The court noted that it was “reasonably clear” that the plaintiffs had a need to show who
`refused the application and why it was refused. Id. And–important for the present controversy about
`the test to be applied–the court stated: “These papers might well lead to the discovery of admissible
`evidence and are suggestively relevant to the subject matter of this action ... and a generalized claim
`of privilege...cannot prevail against the plaintiffs’ need to develop the facts by resort to discovery.”
`Id. The court concluded: “[P]laintiffs have made a sufficient showing of need to overcome the
`presumption and to justify the in camera inspection of the four contested documents.” Id.
`
`Thus, the Court of Claims overrode a generalized assertion of the presidential
`communications privilege for the purposes of in camera inspection of the four documents in question
`based on (1) the need of the plaintiff for the information, (2) the likelihood that the information
`would lead to admissible evidence, and (3) relevance. It is difficult, however, to see in these criteria
`a “heightened” Nixon test for civil cases, other than perhaps a heightened relevance standard.
`
`C. Sealed Case
`
`Although Sealed Case was a criminal case decided before Cheney, as Cheney did not
`overrule it nor set out a particular test for discovery disputes in civil cases, its reasoning merits
`examination for application in this case. In Sealed Case, a grand jury issued a subpoena duces tecum
`seeking documents pertaining to the White House Counsel’s investigation of Alphonso Michael
`(Mike) Espy, a former Secretary of Agriculture in the Clinton Administration, which was related to
`an Office of Independent Counsel investigation as to whether Secretary Espy had unlawfully
`accepted gifts. White House officials produced some of the documents but withheld others on the
`basis of the deliberative process privilege and the presidential communications privilege. After an
`examination of the withheld documents in camera, the U.S. District Court for the District of
`Columbia upheld the Government’s assertion of the privileges. See Sealed Case, 121 F.3d at 734-36.
`
`The U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded. The
`court required a showing of need in defense of the grand jury subpoena. Sealed Case, 121 F.3d at
`753. In discussing what type of showing was necessary, the court turned to the Nixon decision, as
`Cheney had not been decided at the time and because Sealed Case, like Nixon, occurred in a criminal
`context. The D.C. Circuit puzzled over what Nixon required, concluding that the Nixon Court failed
`to elaborate on the demonstrated, specific need standard that it set up. Id. at 754. The only detailed
`discussion of the standard, according to the D.C. Circuit, referred to the tripartite requirement of
`relevancy, admissibility and specificity, which was already found in the version of Federal Rule of
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`Criminal Procedure 17(c) then in effect. But, as the court observed, “[i]t would be strange indeed
`if Nixon required nothing more to overcome presidential privilege than the initial showing of
`relevancy, admissibility and specificity necessary to satisfy Rule 17(c) in all cases, even in cases
`where no claim of privilege is raised.” Id. “If this were true,” the court concluded, “the privilege
`would have no practical effect.” Id. Thus, the D.C. Circuit in Sealed Case formulated a test that was
`purportedly stronger than the test set out in Nixon (the one the Government would have this Court
`employ), because the Nixon test seemed to be no more than the requirements of Rule 17(c).
`
`The D.C. Circuit, therefore, established this test for judging whether sufficient need is shown:
`“A party seeking to overcome a claim of presidential privilege must demonstrate: first, that each
`discrete group of the subpoenaed materials likely contains important evidence; and, second, that this
`evidence is not available with due diligence elsewhere.” The court elaborated on the first
`component: “[T]he evidence sought must be directly relevant to issues that are expected to be central
`to the trial.” Id. at 754. Regarding the second element, the court elaborated also:
`“[U]navailability...reflects Nixon’s insistence that privileged presidential communications should
`not be treated as just another source of information.” Id. at 755.
`
`It is noteworthy that the court did not apply this test in addition to the tripartite requirement
`of relevancy, admissibility and specificity, because the grand jury subpoena did not come within the
`purview of Rule 17(c), which set forth these criteria. See id. at 757. It is also noteworthy that,
`although the court felt that a grand jury subpoena needed more leeway than a criminal trial subpoena
`(as in Nixon), it applied the importance/availability test nonetheless. See id. at 756-57. As the
`discovery dispute in the case at bar more closely resembles a grand jury subpoena than a criminal
`trial subpoena, the D.C. Circuit’s words regarding the grand jury function are informative: “‘The
`function of the grand jury is to inquire into all information that might possibly bear on its
`investigation, ... [and a]s a necessary consequence of its investigatory function, the grand jury paints
`with a broad brush.’” Id. at 755 (quoting United States v. R. Enterprises, Inc., 498 U.S. 292, 297
`(1991)). And: “Requiring grand jury subpoenas to comply with the same requirements of relevancy,
`admissibility, and specificity under Rule 17(c) as applies to trial subpoenas would impose an
`impossible burden on the grand jury.” Id. But one must not press this resemblance too far.
`
`D. The Test to be Applied
`
`After comparing Nixon, Sealed Case and Cheney, and examining the guidance Sun Oil
`provides, this Court concludes that the Sealed Case test comes closest to what the Supreme Court
`was concerned about in Cheney. The Sealed Case test is supposed to be stricter than the Nixon
`tripartite requirement. See id. at 754-55. This Court has already held that, with regard to the
`documents in question in this motion, Dairyland has met the normal requirements imposed on
`document requests in discovery in civil cases. See Order (October 17, 2007). The only reservation
`that the Court has in using the Sealed Case test is that Cheney opined that the test should be stricter
`in civil cases than in criminal cases and that Sealed Case was a criminal case. Cheney, however, did
`not say what the proper test was. In any event, the grand jury subpoena in Sealed Case resembles
`a discovery request in principle. There is no further guidance in the history of Cheney, since on
`
`-10-
`
`

`
`Case 1:04-cv