Opposition To Defendants' Motion For Order To Compel The Production of Documents From Plaintiff
Opposition To Defendants' Motion For Order To Compel The Production of Documents From Plaintiff
Opposition To Defendants' Motion For Order To Compel The Production of Documents From Plaintiff
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and their moving papers limited the original requests to
documents on which an expert witness relies in forming the
expert's report, thereby meeting the United States' objections.
The parties have identified expert witnesses and agreed to a
timetable for exchange of expert reports. In accordance with
Fed. R. Civ. P. 26(a)(2)(B), the United States will produce (as
it would have without regard to the instant motion) documents
considered by its expert witness on the date scheduled for
production of the report, to the extent such documents have not
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satisfying certain criteria.
Defendants' proposed transaction does not fall within the
safety zone for hospital mergers, and defendants have so
stipulated.
B. Scope Of Permissible Discovery
Despite these facts, defendants seek the documents in order
1
Even if defendants had made such allegations, it is well
settled that exercises of prosecutorial discretion are, for the
most part, not judiciable. Wayne v. United States, 470 U.S. 598,
607 (1985). Discovery should not be permitted under these
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3
requested are beyond the scope of discovery, because they are not
"relevant to the subject matter involved in the pending action, .
. ." nor reasonably likely "to lead to the discovery of
admissible evidence." Fed. R. Civ. P. 26(b)(1).
C. Deliberative Process Privilege
Defendants have limited Request 13 from its previously broad
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applications, analysis or implementation of" the safety zones;
and (3) Numerical data and tabulations.
The United States does not have any documents responsive to
defendants' first request for "Senior Officials' Communications."
As to the second, the United States has agreed to produce
published speeches from Antitrust Division officials issued after
the issuance of the Policy Statements. The only other arguably
responsive document is a draft document that was prepared
contemporaneously with development of the safety zones, but which
3
Exhibit 3 resolves defendants' procedural arguments
regarding invocation of the privilege. Defendants' Memorandum In
Support at 9-11. Defendants are not entitled to a schedule of
documents withheld because to do so discloses information that
the privilege was intended to protect. EPA v. Mink, 410 U.S. 73,
93 (1972) (recognizing that the court should guard against
eroding the purposes of the privilege during the process of
evaluating its applicability). The United States has,
accordingly, submitted a Confidential Schedule of Documents in
camera for the Court's review only.
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5
In opposing disclosure of the requested documents, the
United States cautions that defendants' arguments regarding
tabulations, accumulations of data, and other statistical or
numerical information are not supported by the relevant caselaw.
Thus, despite defendants' arguments to the contrary, the
deliberative process privilege protects from discovery factual
material which is intertwined with the policymaking process.
Mink, 410 U.S. at 92. Indeed, in certain instances, the
deliberative process privilege protects memoranda of a purely
factual nature. Brockway v. Dep't of Air Force, 518 F.2d 1184,
1193 (8th Cir. 1975). The privilege protects the process of
separating significant facts from the insignificant. Mapother v.
4
Defendants cite two cases regarding production of factual
material which do not apply to the facts of this case. In
Pacific Molasses Co. v. NLRB, 577 F.2d 1172, 1183 (5th Cir.
1978), the NLRB had compiled a "statistical report which contains
no subjective conclusions, and, as a result, must be considered
'purely factual' in nature." The report was not part of a
deliberative process, such as that involved in developing the
Policy Statements at issue here. Similarly, in Assembly of
California, 968 F.2d 916 (9th Cir. 1992), the data at issue was
census data, not factual information gathered and analyzed by
governmental officials during the course of their deliberations.
Disclosure of the data at issue in that case, in contrast to
disclosure of that at issue here, would not have "enable[d] the
public to reconstruct any of the protected deliberative process."
Id. at 922.
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The Declaration and Claim for Privilege establishes that all
nine documents on the Confidential Schedule fall squarely within
the deliberative process privilege. They were created during the
5
The deliberative process privilege also protects from
disclosure the draft document (number 8 on the Confidential
Schedule) that could have developed, but did not, into an
explanation of the Policy Statements.
Agencies are, and properly should be, engaged
in a continuing process of examining their
policies; this process will generate
memoranda containing recommendations which do
not ripen into decisions; and the lower
courts should be wary of interfering with
this process.
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7
The Court must also consider the context of the creation of
the documents at issue in applying the foregoing principles.
NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 138 (1974). The
safety zone for hospital mergers and to decide the standard for
that safety zone. As such, they should be protected from
disclosure.
CONCLUSION
For the foregoing reasons, the United States respectfully
requests that the Court deny Defendants' Motion To Compel.
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8
Stephen J. Rapp ___________________________
United States Attorney Mary Beth McGee
Eugene D. Cohen
By: Richard S. Martin
Lawrence D. Kudej Jessica N. Cohen
Assistant United States Attorney U.S. Department of Justice
Northern District of Iowa Antitrust Division
P.O. Box 74950 555 4th Street, N.W.
Cedar Rapids, Iowa 52407 Room 9901
Tel: (319) 363-0091 Washington, D.C. 20001
Fax: (319) 363-6110 Tel: (202) 307-1027
Fax: (202) 514-1517
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9
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
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production, among other documents, of all tabulations,
accumulations of data, and other statistical or numerical
information relating to the safety zone for hospital mergers
contained in the Policy Statements. The Antitrust Division has
conducted a search of its files and has located nine documents
that arguably fall within that category. Eight of these
documents are described in the confidential Schedule to this
Declaration, which will be submitted to the Court in camera. I
have reviewed the 8 documents and the attached Declaration of
Gregory S. Vistnes and determined that the 8 documents should be
withheld under a claim of intragovernmental deliberative process
privilege. (The ninth document is a document of the Federal
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types of facts relevant to possible prosecutorial decisions and
antitrust enforcement policy, and the facts are inextricably
intertwined with the authors' analyses and recommendations.
5. One of the primary responsibilities of the Antitrust
Division is to detect and prosecute violations of the federal
antitrust laws. Effective discharge of that responsibility
depends upon formulation and implementation of sound policies.
In order to ensure effective and sound policy-making, the staff
and officials of the Antitrust Division must remain free to
process or thereafter.
6. The eight documents referred to in paragraph 3 above
reflect the deliberative processes of the Antitrust Division. I
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paragraph 3 above.
7. In accordance with 28 U.S.C. § 1746, I certify under
penalty of perjury that the foregoing is true and correct to the
best of my knowledge, information and belief.
Signed this day of August, 1994.
ROBERT E. LITAN
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CONFIDENTIAL SCHEDULE OF DOCUMENTS TO
DECLARATION AND CLAIM OF PRIVILEGE OF
ROBERT E. LITAN
1. A 29-page draft paper discussing possible safe harbor
for small hospitals in rural areas. The paper textually cites
statistical information to support the analysis and refers to
attached maps to support its analysis. The maps analyze the
geographic distribution of hospitals of certain sizes. The paper
also discusses and refers to an attached table from a publication
that summarizes and comments on other published cost studies.
2. A two-page May 25, 1993 draft paper discussing possible
safe harbor for hospital mergers. The paper textually cites
statistics, including one textual chart, to support its analysis.
3. A fourteen-page May 26, 1993 Memorandum from Jon M.
Joyce, former Chief of the Economic Litigation Section of the
Antitrust Division to Anne Bingaman, the Assistant Attorney
General in charge of the Antitrust Division. The paper submits a
May 27, 1993 draft policy position for hospital mergers and a
draft May 27, 1993 paper discussing a possible safe harbor for
hospital mergers, which textually cites statistics, including one
textual chart, to support its analysis. The paper also includes
a table from an outside source showing distribution of hospitals
by size. The remainder of the document discusses a proposed
safety zone other than the one for hospital mergers.
4. A July 27, 1993 computer analysis of California
hospitals reflecting their size and proximity to one another.
This analysis is comprised of two documents, one of 12 pages and
the other of eight pages.
5. An eleven-page collection of draft papers discussing a
possible hospital merger safety zone. The papers analyze various
possibilities for a safety zone and cite statistics textually as
part of the analysis. One attachment shows statistical
information for hospitals in the State of Kansas. A separate
attachment cites and annotates certain references on hospital
size, followed by an analysis of those references and other
information in connection with a possible safe harbor.
6. A five-page handwritten report of statistics on
hospital closings from 1988 to 1991.
7. A series of ten maps showing the geographic
distribution of hospitals in accordance with the size of the
hospitals.
8. A 21-page draft September 13, 1993 set of Questions and
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Answers regarding hospital mergers and other issues. The draft
was never finalized or adopted as a statement of the Antitrust
Division.
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
EASTERN DIVISION
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appropriate for consideration during the deliberations regarding
the Policy Statements before they were issued. The staff
selected for inclusion in the documents all tables, maps and
other statistical or numerical information. In addition, with
the exception of a few tables reproduced from published texts,
the staff created all tables and maps from larger publicly-
available data bases (1989-90 "Individual Hospital Data,"
California Healthcare Facilities Commission and the American
Hospital Association data set on hospitals).
GREGORY S. VISTNES
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