A federal court in New York has ordered the New Jersey Department of Environmental Protection (NJ DEP) to produce documents on its pre-decisional deliberations about the risks and benefits of the gasoline additive methyl tertiary butyl ether (MTBE ) in an enforcement lawsuit against several oil and gas companies. In re: MTBE Prods. Liab. Litig., No. 1-1898 (S.D.N.Y. 6/15/12).
Defendants sought an order to produce documents that NJ DEP claimed were protected under the “deliberative process privilege” which permits the government “to withhold documents that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.” Defendants argued that the agency waived the privilege because it asserted claims that put at issue its knowledge and opinions on MTBE ’s risks and benefits. Under New Jersey law, “when a party puts its confidential communications directly at issue in litigation, any privilege – qualified or not – may be waived.”
The court agreed with defendants, ruling that NJ DEP’s failure-to-warn claims put its own deliberations at issue and the agency therefore waived the deliberative process privilege with regard to those documents. According to the court, because the failure-to-warn claim “can only succeed if NJ DEP demonstrates that it would have heeded adequate warnings,” the agency “has placed its own decision making process at issue.”