A. Procedures for Asserting and Defending the Deliberative Process Privilege

1. Introduction

The deliberative process privilege protects certain predecisional, internal agency information, such as recommendations and analysis, from disclosure during litigation. EEOC attorneys may assert the deliberative process privilege in litigation on their own authority (e.g., in responding to discovery requests or defending depositions), but whenever the applicability of the privilege becomes an issue before a court (for example, on motions to compel, for protective orders, or to quash subpoenas), the privilege must be formally asserted by the head of the agency.

2. The Deliberative Process Privilege

The United States Government may withhold evidence in litigation in any of the following circumstances: (1) where a statute makes certain documents or information confidential; (2) where a privilege or objection is available to any other litigant under the Federal Rules of Civil Procedure (e.g., relevance, undue burden, attorney-client privilege); or (3) where a special privilege exists unique to the government (e.g., informer privilege, deliberative process privilege).¹

The EEOC typically asserts the deliberative process privilege in litigation in order to protect the confidentiality of internal, deliberative material, such as documents containing the analyses, opinions, or recommendations of enforcement unit staff, and attorney memoranda containing analysis or recommendations. The procedure for asserting the deliberative process privilege depends on the stage at which the privilege is raised.

3. Asserting the Privilege in Depositions or Discovery Responses

Attorneys in the Office of General Counsel (OGC) may assert the deliberative process privilege at depositions or in discovery responses without obtaining prior permission from headquarters. From a practice standpoint, making the initial claim is treated no differently than asserting the attorney-client or attorney work product privileges.

4. Asserting and Defending the Privilege Before the Court

Once the deliberative process privilege is at issue in a motion before a court, attorneys in OGC must obtain authorization from OGC-HQ and a declaration signed by the Chair of the EEOC to formally assert the privilege.² The Chair's declaration should: (1) describe the documents being withheld with reasonable particularity; (2) affirm that he/she has reviewed the documents; and (3) explain why the documents fall within the privilege. The declaration (and accompanying exhibit) should be sufficiently detailed to permit the court to assess whether the documents are covered by the privilege.

a. Approval of Regional Attorney or Associate General Counsel

Once the deliberative process privilege is at issue in a motion before a court, the Regional Attorney must personally approve assertion of the privilege for cases being litigated in the field. For cases being litigated in headquarters, the Associate, or where applicable, Assistant General Counsel must approve assertion of the privilege.

b. Review and Approval by OGC-Headquarters

Once the Regional Attorney has approved assertion of the privilege, the legal unit attorney should contact Litigation Management Services (LMS) to let his/her LMS liaison attorney know that a declaration package will be forthcoming. The LMS liaison attorney will be the person responsible for shepherding the declaration through the approval process.

The attorney will then prepare and transmit to the LMS liaison attorney a package consisting of: (1) a cover memorandum to LMS, (2) the Chair's declaration, (3) an exhibit describing any documents withheld or redacted, and (4) copies of any documents withheld or redacted. Where the declaration is sought in connection with a deposition notice, the attorney will also include a copy of the notice and any accompanying subpoena in the package. E-mail the cover memorandum, draft declaration, and exhibit to the LMS liaison. The cover memorandum should include any pertinent information about the declaration, such as the court filing date for the declaration and the date on which the legal unit must receive the signed declaration in order to file it on time. For samples of declarations and accompanying exhibits, see sections II.B., C. and D. of this Part of the Manual. Concomitantly, the legal unit attorney should mail a complete (unredacted) set of the documents described in the exhibit to the LMS liaison. (Retain your original set of documents.) Label the documents you submit to correspond to the paragraph numbers in the exhibit (e.g., No. 1, No. 2, No. 3), using pencil or post-its to allow for changes. Use square brackets to indicate those portions of the documents that you intend to redact, again using pencil.

The LMS liaison will review the package submitted by the legal unit and will contact the legal unit if additional information is necessary. Where the local court rules allow, OGC-HQ should have no less than 3 working days for its review. Once OGC-HQ has approved the package, the liaison will forward it to the Chair for action.

c. Approval and Signature of Chair

After OGC has forwarded the declaration and supporting documents to the Chair for review and signature, the LMS liaison will respond initially to any questions from the Chair, but may need to consult with the district office during this process. If the Chair signs the declaration, your LMS liaison attorney will inform you immediately and return the declaration to you.

Where possible under the local court rules, the Chair should have no less than 7 working days to review the deliberative process privilege declaration and supporting materials. Where the local rules require filing of a response prior to the Chair's completion of her review, the district office should consult with OGC on what to tell the court about the status of the declaration.

¹See generally Association for Women v. Califano, 566 F.2d 339, 343-44 (D.C. Cir. 1977) (listing various privileges available to the government); Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 509 (2d ed. 2003). Cf. Freedom of Information Act, 5 U.S.C. § 552(b) (setting out nine statutory exceptions to producing government documents).

² The attorney-client privilege and the attorney work product privilege may be asserted before a court without consultation with OGC, even where those privileges cover documents or information also protected by the deliberative process privilege.