Cherokee Nation, The et al v. Salazar et al

Filing 72

OPINION AND ORDER by Magistrate Judge T Lane Wilson ; denying 54 Motion to Compel (crp, Dpty Clk)

THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
THE CHEROKEE NATION and
CHEROKEE NATION
ENTERTAINMENT, LLC,
Plaintiffs,
vs.
KENNETH L. SALAZAR, in his official
Capacity as Secretary of the Interior, and
MICHAEL S. BLACK, in his official
capacity as Acting Secretary for Indian
Affairs
Defendants.

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Case No. 12-cv-493-GKF-TLW

OPINION AND ORDER
Before the Court is defendants’ Motion to Compel Return of Inadvertently Produced
Documents and Memorandum in Support. (Dkt. # 54). Defendants’ motion seeks the return of
twenty documents that they claim are privileged and were inadvertently disclosed to plaintiffs.
Id. Because defendants’ motion did not specify that the parties had conferred before the motion
was filed, the Court directed the parties to meet and confer to attempt to resolve the discovery
dispute. Id. Through a joint notice filed with the Court, the parties stated that they were able to
resolve the dispute with respect to nineteen of the twenty documents. (Dkt. # 59). Thereafter,
plaintiffs filed a response addressing the single document still at issue. (Dkt. # 62). The Court
held a hearing on March 20, 2013. (Dkt. # 69).
Background Information and Relevant Facts
Plaintiffs’ lawsuit seeks declaratory and injunctive relief from an administrative agency
decision, dated July 30, 2012, in which the Department of the Interior approved the acquisition
of a parcel of land into trust for use by the United Keetoowah Band Corporation, which had been

operating a casino on the property. (Dkt. # 2). Plaintiffs argue that the agency’s decision was
“unlawful, unwarranted by the facts, and in excess of its authority. . . .” (Dkt. # 2 at 17).
Plaintiffs have challenged a number of the findings in the agency decision. (Dkt. # 2 at 18-34).
Because the lawsuit was filed pursuant to the Administrative Procedure Act (“APA”),
defendants “compiled and certified an administrative record that contains the documents directly
or indirectly considered by the decision maker in this case. . . .” (Dkt. # 54). See also 5 U.S.C. §
706. In their motion, defendants contend that the disputed document was initially included in the
privilege log and should have been withheld from disclosure. (Dkt. # 54). However, in compiling
the administrative record, “the coding for the documents and internal links to the index were
altered,” resulting in the inadvertent production of twenty documents, including the disputed
document. (Dkt. # 54 at 1-2).
The document at issue contains a string of five emails and a “briefing paper.” (Dkt. # 62,
Ex. 1). The email string is dated July 23 and 24, 2012, and originates from Bryan Newland,
Senior Policy Advisor to the Assistant Secretary – Indian Affairs. (Dkt. # 62, Ex. 1). In that
email, Mr. Newland requests “a very short briefing paper on the UKB fee to trust application.”
(Dkt. # 62, Ex. 1). To assist in preparation of the briefing paper, Mr. Newland attached a
template, which was not included in the document. Id. One of the recipients of that email, Scott
Keep, responded that he was preparing the draft. Id. Mr. Keep’s email signature states that he
works for the Division of Indian Affairs, Office of the Solicitor. Id. On July 24, 2012, Mr. Keep
forwarded a copy of the “briefing paper” to the original recipients of the email. Id. Mr. Keep’s
email reads as follows: “Attached is my rough draft. Mike has not yet seen it but it is due at noon
so any comments would be appreciated.” Id.

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The briefing paper is a two-page document titled “United Keetoowah Band of Cherokee
Indians Trust Acquisition.” (Dkt. # 62, Ex. 1). The briefing paper (1) addresses the agency’s
decision to approve the application to place the land into trust; (2) covers the background
regarding the history of the United Keetoowah Band and the application at issue; (3) provides an
“Overview of Analysis” that outlines the agency’s reasons for granting the application; and (4)
cites two “Noteworthy Issues” that separate this decision from previous Department of Indian
Affairs’ decisions. Id.
In their motion, defendants argue that the documents at issue were inadvertently
disclosed and that defendants are entitled to an order compelling plaintiffs to return the
documents and allowing defendants to file an amended administrative record that excludes the
inadvertently disclosed documents. (Dkt. # 54). Defendants contend that they took proper steps
to rectify the inadvertent production once they discovered it and that they are entitled to relief
under Federal Rule of Civil Procedure 26(b)(5)(B) and Federal Rule of Evidence 502. (Dkt. #
54). Defendants invoke the attorney-client privilege and the deliberative process privilege as the
basis for recovering the documents.1 Id.
In their response, plaintiffs advise the Court that the “meet and confer” resolved most of
the dispute. Only the July 23-24, 2012 emails and the briefing paper remain at issue. (Dkt. # 62).
Plaintiffs state that they agreed during the meet and confer that the email messages qualified as
“attorney comments or opinions” and offered to have those messages redacted “if the two page
briefing paper remains part of the Administrative Record as it should.” (Dkt. # 62 at 4).

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The motion applies these arguments generally to all of the documents at issue; therefore, the
Court applies those arguments to the sole document still at issue after the “meet and confer” –
the string of emails and the briefing paper.
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Plaintiffs argue, however, that the emails and the briefing paper are not subject to either
the attorney-client privilege or the deliberative process privilege. (Dkt. # 62). Plaintiffs contend
that the email messages contain no legal advice or information that could reveal client
confidences. Id. With respect to the briefing paper, plaintiffs argue that Mr. Keep’s role as “inhouse counsel” requires heightened scrutiny. (Id., quoting Lindley v. Life investors Ins. Co., 267
F.R.D. 382, 389 (N.D.Okla. 2010)). Plaintiffs imply, but do not argue specifically, that this
heightened scrutiny weighs against applying the attorney-client privilege to the briefing paper.
(Dkt. # 62). Plaintiffs also argue that the deliberative process privilege does not apply because
the briefing paper, on its face, indicates that the decision to take the property into trust was
already made; therefore, “[t]he disputed document does not focus on the predecisional process,”
which is a requirement for the application of the deliberative process privilege. (Dkt. # 62 at 7).
At the hearing, defendants maintained that both the attorney-client privilege and the
deliberative process privilege apply to the document containing the July 23-24, 2012 emails and
the briefing paper. (Dkt. # 69, Hearing on Motion to Compel, Jody Schwarz). Defendants argued
that the briefing paper was drafted by an attorney and contains the legal reasons that support the
acquisition of the land in trust, thereby qualifying the document as subject to the attorney-client
privilege. Id. The Court asked defendants to identify language in the briefing paper that was
analytical rather than merely a historical recitation of the facts of the case and previous agency
decisions. (Dkt. # 69, Hearing on Motion to Compel, United States Magistrate Judge T. Lane
Wilson). Defendants argued that the portions of the briefing paper titled “Overview of Analysis”
and “Noteworthy Issues” contain advice that explained how the Assistant Secretary would
formulate his decision. (Dkt. # 69, Hearing on Motion to Compel, Jody Schwarz). Defendants
admitted that the briefing paper does not explicitly state that its contents are intended to provide

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advice to the Assistant Secretary; however, defendants argued that the briefing paper, in the
context of the events occurring at the time, demonstrate that the briefing paper was intended to
advise the Assistant Secretary and assist him in making his decision. (Dkt. # 69, Hearing on
Motion to Compel, Jody Schwarz). Plaintiffs, on the other hand, argued that the briefing paper
more closely resembled a factual recitation or a “talking points” memo. (Dkt. # 69, Hearing on
Motion to Compel, Stephen Douglas Dodd). Plaintiffs also stated that without seeing the
template attached to the original email, they cannot determine whether the briefing paper
contains advice or whether its content merely mimics the template. Id.
Alternatively, defendants argued that the briefing paper is subject to the deliberative
process privilege. (Dkt. # 69, Hearing on Motion to Compel, Jody Schwarz). Defendants argued
that the briefing paper was written in order for the Assistant Secretary and others involved in the
decision-making process to look at the reasoning behind the decision prior to its release. Id. Ms.
Schwarz contended that the decision was not “set in stone” at the time the briefing paper was
drafted, but she also acknowledged that the date of the final decision was not determinative of
the requirement that the briefing paper be predecisional. Id. In support, defendants cited to the
draft itself, noting that the language indicates that there was some question about the Secretary’s
ability to acquire the land in trust. Id. Plaintiffs argued that the draft indicates that the briefing
paper is not predecisional, citing the first paragraph, which contains the Secretary’s final
decision regarding the matter, as well as the use of past tense language in the analysis section,
which also indicates a final decision. (Dkt. # 69, Hearing on Motion to Compel, Stephen Douglas
Dodd). Plaintiffs also stated that this draft was the only one in the administrative record, but
defendants stated that they believed a subsequent draft had been included in the record. (Dkt. #
69, Hearing on Motion to Compel, Jody Schwarz and Stephen Douglas Dodd).

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At the end of the hearing, the Court asked defendants to submit a copy of the template for
in camera review, as well as any other evidence, including affidavits, that support their claims of
privilege. (Dkt. # 69, Hearing on Motion to Compel, United States Magistrate Judge T. Lane
Wilson). Defendants made their in camera submission, which included the template, on March
22, 2013.
ANALYSIS
Deliberative Process Privilege
The deliberative process privilege protects “documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by which governmental
decisions and policies are formulated” from discovery. NLRB v. Sears, Roebuck & Co., 421
U.S. 132, 150, 92 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (internal quotations and citation omitted).
The privilege exists to “protect[] open and frank discussion” among agency personnel in order
“to enhance ‘the quality of agency decisions.’” Department of Interior v. Klamath Water Users
Protective Ass’n, 532 U.S. 1, 8-9 (2001) (quoting Sears, Roebuck, 421 U.S. at 151). The
privilege serves the secondary purpose of “prevent[ing] the premature disclosure of proposed
policies, and avoids ‘misleading the public by dissemination of documents suggesting reasons
and rationales for a course of action which were not in fact the ultimate reasons for the agency’s
action.’” Trentadue v. Integrity Comm., 501 F.3d 1215, 1226 (10th Cir. 2007) (quoting Coastal
States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). The privilege
protects both intra-agency and inter-agency documents. See Renegotiation Bd. v. Grumman
Aircraft Engineering Corp., 421 U.S. 168, 188, 95 S.Ct. 1491, 44 L.Ed. 2d 57 (1975).
To qualify for protection under the privilege, the party seeking to invoke the privilege
bears the burden of proving that the document at issue is both predecisional and deliberative.

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Trentadue, 501 F.3d at 1226, 1227 (citations omitted). The case law does not articulate a specific
burden of proof imposed on an agency, but an agency can meet its burden through the
submission of evidence such as affidavits, a detailed privilege log, and other evidence. See, e.g.,
Loving v. Department of Defense, 550 F.3d 32, 41 (D.C. Cir. 2008); Boyd v. Department of
Justice, 475 F.3d 381, 392 (D.C. Cir. 2007); Coastal States, 617 F.2d at 861. Even if an agency
meets its burden, however, the privilege is a qualified one and can be “overcome by a sufficient
showing of need.” In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997).
Predecisional
A document is predecisional if it is “‘prepared in order to assist an agency decisionmaker
in arriving at his decision.’” Trentadue, 501 F.3d at 1227 (quoting Renegotiation Bd., 421 U.S. at
184). Defendants raise two primary arguments to support their contention that the emails and
briefing paper are predecisional. First, defendants note that the emails and the briefing paper
were drafted and circulated on July 23 and 24, 2012, prior to the agency’s final decision on July
30, 2012. Second, defendants argue that the language of the briefing paper and the larger context
of the events leading up to the decision support a finding that the emails and briefing paper are
predecisional because they indicate that the decision was not yet final and was subject to
revision. In support, defendants have submitted the string of emails, the template referenced in
the first email, and a revised privilege log for in camera review. Plaintiffs disagree. They argue
that in spite of the date of the emails and briefing paper, the language of the briefing paper
indicates that the decision had already been made and, thus, that the briefing paper was not
predecisional.
The emails and briefing paper were written approximately one week prior to the final
agency decision. Several circuits, including the District of Columbia Circuit, apply a temporal

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test. See, e.g., Enviro Tech Int’l v. United States Environmental Protection Agency, 371 F.3d
370, 375 (7th Cir. 2004) (stating that a predecisional document is “‘actually [a]ntecedent to the
adoption of an agency policy,’”) (citations omitted); Texaco Puerto Rico, Inc. v. Department of
Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995); National Wildlife Fed’n v. United States
Forest Svc., 861 F.2d 1114, 1117 (9th Cir. 1988); Senate of the Commonwealth of Puerto Rico
on Behalf of Judiciary Comm. v. United States Dep’t of Justice, 923 F.2d 574, 585 (D.C. Cir.
1987) (holding that “[a] document is ‘predecisional’ if it precedes, in temporal sequence, the
‘decision’ to which it relates.”).
The Tenth Circuit has not adopted a temporal test. Instead, the Tenth Circuit has
indicated that courts should consider the substance of the document and the circumstances of
each case. See Casad v. United States Dep’t of Health & Human Svcs., 301 F.3d 1247, 1252
(10th Cir. 2002). In Casad, the Tenth Circuit cited two factors that are “helpful” in determining
whether a document is predecisional: (1) “the ‘nature of the decisionmaking authority vested in
the officer or person issuing the disputed document;’” and (2) “the relative positions in the
agency’s ‘chain of command’ occupied by the document’s author and recipient.” Casad, 301
F.3d at 1252) (citations omitted).2 Additionally, at least one district court within the Tenth
Circuit has interpreted the Supreme Court’s holding in Sears, Roebuck as rejecting the temporal
test. See Securities and Exchange Comm’n v. Naccio, 704 F.Supp.2d 1099, 1110-1111 (D.Colo.
2010). In Naccio, the district court held that the predecisional test “is one that requires
examination of the advice being given, its connection to an agency decision, and the purpose that
advise [sic] is intended to serve. The fact that the discussion post-dates a particular decision does
not automatically render that discussion discoverable.” Naccio, 704 F.Supp.2d at 1110. The

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Notably, the Tenth Circuit derives these factors from cases issued from the District of
Columbia Circuit Court, which applies a temporal test.
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Supreme Court, in Sears, Roebuck, did acknowledge that “the line between pre-decisional
documents and postdecisional documents may not always be a bright one” and cited
circumstances in which even a final agency decision could be considered predecisional if it
functioned as a guide for cases yet to be determined. Sears, Roebuck, 421 U.S. at 153, n. 19.
Applying the substantive approach set out by the Tenth Circuit to the predecisional
question at issue, the Court finds that defendants have not met their burden of establishing that
the emails and briefing paper are predecisional. The Assistant Secretary for Indian Affairs
authored the final agency decision at issue in this case. (Dkt. # 28, Ex. 4). His senior policy
advisor requested the briefing paper approximately one week before the final agency decision
issued. (Dkt. # 62, Ex. 1). Mr. Keep, an attorney within the agency, drafted the briefing paper. Id.
When Mr. Keep emailed the briefing paper, he noted that it was a “rough draft” and that he
welcomed any comments. Id. Mr. Keep also noted that “Mike” had not reviewed the draft, which
implies that Mr. Keep’s draft was open to further revision before being forwarded to the
Assistant Secretary’s office. Id. Although these facts indicate that the briefing paper was not final
and did not necessarily have a binding effect on the final agency determination, they are not
enough.
The fact that the briefing paper was a rough draft and open to comment may mean that a
final decision was still being formulated. It also may mean that the final decision had been
reached, but the format and wording were open to comment and revision. Likewise, the fact that
“Mike” had not reviewed the draft, may mean that until “Mike” had given his approval, the
briefing paper was preliminary and only an initial effort by Mr. Keep to provide his opinion
regarding the direction the decision should take. Again however, the contemplated review by
Mike may have been for form, not content, indicating that the decision had already been made.

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The fact that defendants’ privilege log contains a number of entries after July 24, 2012 (the date
of the briefing paper) and indicates that revisions to the final decision were made up until its
release on July 30, 2012 (dkt. # 28, Ex. 2), also does not assist the Court. Rather, this fact merely
begs the questions of whether or not the revisions were substantive or form only. Each of these
ambiguities could easily have been addressed by defendants in an affidavit, but despite the
Court’s invitation, defendants did not submit any evidence to address the ambiguities.
Moreover, certain language in the briefing paper supports plaintiffs’ contention that the
decision had already been made and that the briefing paper was intended to serve as a talking
points memorandum. (Dkt. # 62, Ex. 1). For example, the first sentence of the briefing paper
states that “The Assistant Secretary – Indian Affairs has approved . . . .” Id. (emphasis added).
This past tense language, which is employed throughout the briefing paper, tends to establish that
the decision had already been made.3 Id. Additionally, the final opinion, released on July 30,
2012, applies the same analysis used in the briefing paper, including the sources and citations.
(Dkt. # 28, Ex. 2; Dkt. # 62, Ex. 1). Of course, the Court can easily think of an explanation for
these facts that would support a finding that the briefing paper is predecisional, but the burden is
on defendants, and ambiguous facts which can easily be interpreted to support plaintiffs’
arguments cannot meet this burden. Thus, the Court finds that defendants have failed to meet
their burden of establishing that the briefing paper is predecisional.

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The administrative record does not assist in defining when the decision was made. An
email from Mr. Newland, written July 10, 2012, states that the Assistant Secretary had told the
tribe that the agency “would undertake our very best efforts to reach a decision (positive or
negative) by the 30th.” (Dkt. # 28, Ex. 17). That email indicates that a final decision had not yet
been made, although it is possible – even likely – that the Assistant Secretary would not have
disclosed the substance of the decision even if it had been made. Emails from July 27, 2012,
however, indicate that the final decision had been made and that the agency was in the process of
making final edits and collecting the necessary documents needed to issue the final decision.
(Dkt. # 28, Ex. 9 and 10).
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Deliberative
The Tenth Circuit recognizes that identifying a document as deliberative is a more
difficult task. See Trentadue, 501 F.3d at 1227. The Court must review each document and
consider both its contents and its context “because the deliberative process privilege is so
dependent upon the individual document and the role it plays in the administrative process.”
Coastal States Gas Corp., 617 F.2d at 867. Documents that are deliberative and, therefore,
covered under the privilege include “recommendations, draft documents, proposals, suggestions,
and other subjective documents which reflect the personal opinions of the writer rather than the
policy of the agency.” Id. at 866. Factual materials do not qualify as deliberative unless their
“disclosure ‘would so expose the deliberative process within an agency that it must be deemed
exempted.’” Trentadue, 501 F.3d at 1228 (quoting Mead Data, Inc, v. United States Dep’t of the
Air Force, 566 F.2d 22, 256 (D.C. Cir. 1977)). The Tenth Circuit exempts factual materials only
if (1) “they are inextricably intertwined with deliberative materials” or (2) “their disclosure
would reveal deliberative material.” Id. at 1229.
The briefing paper at issue is largely a factual recitation of the background information
used to support the agency’s decision to take the property into trust. (Dkt. # 62, Ex. 1). The
briefing paper is divided into four sections and summarizes the decision (“Decision”); provides
background information on the United Keetoowah Society of Cherokee Indians and the casino
currently operated on the property in question (“Background”); summarizes the reasons for the
agency’s decision (“Overview of Analysis”); and identifies the decision as a novel approach to
cases involving Indian lands and trust acquisitions (“Noteworthy Issues”). Id. During the
hearing, the Court raised the point that the briefing paper appeared to be a historical recitation.
(Dkt. # 69, Hearing on Motion to Compel, United States Magistrate Judge T. Lane Wilson).

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Defendants did not dispute the Court’s statement with respect to the Background section of the
briefing paper; however, they argued that the Decision, Overview of Analysis, and Noteworthy
Issues sections contain deliberative statements because those sections set forth the legal basis for
the ultimate decision. (Dkt. # 69, Hearing on Motion to Compel, Jody Schwarz). Aside from the
argument presented at the hearing, defendants presented no other evidence, at the hearing or in
the in camera submission to support their claim that the briefing paper is deliberative.
More importantly, nothing in the briefing paper indicates that its content is deliberative.
The briefing paper contains no opinions, other than the opinion of the Assistant Secretary, who
was the final decision-maker and whose opinion is contained in the final decision. (Dkt. # 62, Ex.
1). It does not set forth any suggestions, proposals, or options for consideration as “part of a
process by which governmental decisions and policies are formulated.” Sears, Roebuck, 421
U.S. at 150. Rather, the briefing paper appears to serve as a factual summary that includes the
final decision, which, as the privilege log indicates, was in the final stages of revision. A review
of the final decision supports this conclusion, as the final decision tracks the “analysis” and
citations in the briefing paper almost verbatim. (Dkt. # 28, Ex. 4). Additionally, the email string,
which originated from the Senior Policy Advisor to the Assistant Secretary, does not ask for any
suggestions, opinions, or other deliberative action. (Dkt. # 62, Ex. 1). Instead, that email
indicates that the “very short briefing paper” is a summary of the draft decision, as it existed on
that date. Id. For these reasons, the Court finds that defendants have not met their burden to
establish that the briefing paper was deliberative.
Because defendants have not established either prong of the deliberative process privilege
test, the privilege does not apply.

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Attorney-Client Privilege
Defendants also argue that the attorney-client privilege should apply to the email string
and the briefing paper because those documents contain legal analysis, which qualifies as advice
from the Office of the Solicitor to the Assistant Secretary regarding the formulation of the final
decision to take the land into trust. (Dkt. # 54; Dkt. # 69, Hearing on Motion to Compel, Jody
Schwarz). During the hearing, defendants cited the “former reservation” issue addressed in the
Overview of Analysis and Noteworthy Issues sections of the briefing paper as an example of the
legal advice provided. (Dkt. # 69, Hearing on Motion to Compel, Jody Schwarz). Plaintiffs
argued at the hearing that the briefing paper resembled a “talking points” paper, not legal advice;
however, plaintiffs stated that without seeing the template from the original email, they could not
definitively take a position on the issue. (Dkt. # 69, Hearing on Motion to Compel, Stephen
Douglas Dodd).
“The attorney-client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449 U.S.383, 389,
101 S.Ct. 677, 66 L.Ed.2d 584 (1981) (citation omitted). The privilege “encourage[s] full and
frank communications between attorneys and their clients” because an attorney’s ability to
provide “sound legal advice or advocacy depends upon the lawyer’s being fully informed by the
client.” Id. The privilege covers communications from client to attorney and from attorney to
client. See In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010). The privilege,
however, is not universal, as it protects only those communications that “relate to legal advice or
strategy sought by the client.” United States v. Johnston, 146 F.3d 785, 794 (10th Cir. 1998).
Defendants, who are seeking to invoke the privilege, bear the burden of proof. See Motley v.
Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir. 1995).

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The factual recitations contained in the briefing paper’s Decision and Background section
do not contain legal advice or strategy, nor do they tend to disclose client confidences. (Dkt. #
62, Ex. 1). Accordingly, that portion of the briefing paper is not subject to attorney-client
privilege. The string of emails also does not convey or request, or relate to legal advice, unless
the Senior Policy Advisor to the Assistant Secretary was seeking a legal opinion in the briefing
paper. Defendants bear the burden of proof on this issue, and as the Court has previously found
in considering the deliberative process privilege, the evidence presented to the Court establishes
that the briefing paper is a summary of the agency’s final decision, not an opinion on the ultimate
question. Again, if the contents of the briefing paper are intended to reflect an opinion on the
ultimate question or the culmination of legal advice previously sought, defendants could easily
have established this fact by affidavit. They did not.
The Overview of Analysis and Noteworthy Issues sections of the briefing paper are a
closer question. Defendants correctly state that these sections of the briefing paper contain legal
analysis insofar as they set forth the reasons that support the decision to acquire the property in
trust for gaming purposes. However, the context of the briefing paper, as well as its content,
indicates that the briefing paper is the summary of a decision already made but not yet released
to the public. In addition, one would expect some indication on the briefing paper itself or in the
transmitting email that the content was subject to the attorney client privilege if, in fact, it was.
Most importantly, defendants could have established this fact through an affidavit. For whatever
reason, they chose not to. Thus, defendants have failed to meet their burden of proving that the
emails and briefing paper qualify as a request for, or the receipt of, legal advice, and the Court
finds that these sections of the briefing paper are not legal advice given to the Assistant Secretary
to aid in his decision.

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Finally, even assuming the legal analysis contained in the briefing paper is the
culmination of the Solicitor’s Office advice to the Assistant Secretary, defendants waived any
privilege attached to that analysis when they released it, almost verbatim, to the public in the
form of the final decision of the Assistant Secretary. See In re Grand Jury Proceedings, 616 F.3d
at 1184 (holding that the privilege is waived when a client voluntarily discloses the privileged
information).
CONCLUSION
For the reasons set forth in this Order, defendants’ Motion to Compel Return of
Inadvertently Produced Documents (dkt. # 54) is DENIED.
SO ORDERED this 30th day of April, 2013.

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