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United States of America ex rel. Glenda Martin and State of Tennessee ex rel. Glenda Martin, Plaintiffs / Relator, v. Life Care Centers of America, Inc., Defendant. United States of America ex rel. Tammie Johnson Taylor, Plaintiff / Relator, v. Life Care Centers of America, Inc., Defendant Case Nos. 1:08-cv-251, 1:12-cv-64 Signed August 31, 2015 Wray, Christopher A., Special Master SPECIAL MASTER'S REPORT & RECOMMENDATION REGARDING DOCUMENTS SUBJECT TO DEFENDANT'S MOTION TO COMPEL PRODUCTION The Special Master submits this report on its review of the disputed documents that are subject to Defendant Life Care Centers of America, Inc.'s pending Motion to Compel Production of Documents. TABLE OF CONTENTS I. INTRODUCTION ...–––– II. PROCEDURAL POSTURE ...–––– A. Case Background ...–––– B. Life Care's Motion to Compel ...–––– C. Appointment of Special Master ...–––– III. AUTHORITY AND RESPONSIBILITIES OF THE SPECIAL MASTER ...–––– A. Special Master's Role ...–––– B. Legal Standard Established by the Court ...–––– IV. THE SPECIAL MASTER'S RECEIPT AND REVIEW OF THE DOCUMENTS AT ISSUE ...–––– A. The Special Master's Receipt of Documents and Information from the Parties ...–––– B. Documents Over Which the United States Withdrew its Assertion of Privilege ...–––– C. The Organization of the Special Master's Review and Evaluation Process ...–––– D. Matters Considered During the Special Master's Review and Evaluation Process ...–––– E. Issues in the United States' Privilege Logs and Related Submissions ...–––– F. The Special Master's Review of Additional Legal Authority ...–––– V. THE SPECIAL MASTER'S RECOMMENDED FINDINGS ...–––– A. Impact of the United States' Withdrawal of Its Assertion of the Privilege ...–––– B. Recommendations Regarding Documents Identified in Life Care's Table 1 ...–––– C. Recommendations Regarding Documents Identified in Life Care's Table 2 ...–––– D. Recommendations Regarding Documents Identified in Life Care's Table 3 ...–––– E. Recommendations Regarding Documents Identified in Life Care's Table 4 ...–––– F. Recommendations Regarding Documents Identified in Life Care's Table 5 ...–––– G. Recommendations Regarding Documents Identified in Life Care's Table 6 ...–––– H. Recommendations Regarding Documents Identified in Life Care's Table 7 ...–––– I. Recommendations Regarding Documents Identified in Life Care's Table 8 ...–––– J. Recommendations Regarding Documents Identified in Life Care's Table 9 ...–––– K. Recommendations Regarding Documents Identified in Life Care's Table 10 ...–––– L. Recommendations Regarding Documents Identified in Life Care's Table 11 ...–––– M. Recommendations Regarding Documents Identified in Life Care's Table 12 ...–––– N. Recommendations Regarding Documents Identified in Life Care's Table 13 ...–––– VI. CONCLUSION ...–––– I. INTRODUCTION By Order of the Court dated April 27, 2015 and as detailed in Sections II and III below, the Special Master was appointed and assigned the task of conducting a review of 2,697 documents (totaling 45,321 pages) to determine whether the United States had properly asserted the deliberative process privilege over those documents, which have been sought in discovery by Defendant Life Care Centers of America, Inc. in the above-captioned case. Pursuant to the Court's Order, and as detailed in Section IV below, the Special Master engaged in a series of communications with both parties to obtain the documents at issue and any information necessary to conduct the review task assigned by the Court.[1] This included obtaining copies of the documents, seeking certain additional information necessary to evaluate those documents for purposes of the deliberative process privilege, and answering questions regarding certain issues that were identified over the course of the review process. Section IV provides a description of the document review process undertaken by the Special Master,[2] and the matters it considered during that process. *2 The Special Master submits this report, as required under the Court's Order, to describe the review that has taken place and to explain the results of the Special Master's evaluation of whether the documents at issue are protected by the deliberative process privilege. As set forth in more detail in Section V below and Attachment A,[3] the Special Master recommends that the Court order that with respect to the 2,697 documents at issue:[4] ● 1977 documents be withheld in their entirety as subject to the deliberative process privilege. ● 108 documents be produced in redacted form based on the presence of factual information in the document that is severable from those portions of the document subject to the deliberative process privilege.[5] ● 147 documents be produced in their entirety as not subject to the deliberative process privilege. ● 404 documents be produced in their entirety based upon the United States' withdrawal of its assertion of privilege. II. PROCEDURAL POSTURE A. Case Background 1. Nature of the Dispute This is a qui tam action filed under the False Claims Act, 31 U.S.C. § 3729 et seq., against Defendant Life Care Centers of America, Inc. (“Life Care”), in which the United States filed a Consolidated Complaint in Intervention on November 28, 2012. United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 [Dkt. No. 69] (hereinafter Complaint). Life Care is a skilled nursing facility (“SNF”) that provides skilled therapy services to patients in its facilities around the country. The Government's Complaint alleges that Life Care provided “medically unreasonable, unneccessary, and unskilled skilled therapy services” to Medicare and TRICARE beneficiaries “us [ing] false records and statements to support those claims.” Compl. ¶ 6. 2. Document Discovery Issues On March 4, 2013, the parties were ordered “to confer and develop a discovery plan in accordance with Fed. R. Civ. P. 26(f).” Mar. 4, 2013 Order [Dkt. No. 82]. They exchanged Rule 26(a)(1) initial disclosures on May 17, 2013. See United States' Disclosures Under FED. R. CIV. P. 26(a)(1) [Dkt. No. 97]; Def.'s Disclosures Pursuant to Rule 26(a)(1) [Dkt. No. 98]. Thereafter, in response to Life Care's First Request for Production of Documents, the United States asserted the deliberative process privilege as protecting certain documents from disclosure and, accordingly, withheld those documents from production. The United States prepared thirteen privilege logs (some of which were amended during the course of discovery), only some of which are at issue: United States' Third Privilege Log – First Supplement; United States' Third Privilege Log – Second Supplement; United States' Amended Sixth Privilege Log; United States' Seventh Privilege Log – First Supplement; United States' Eighth Privilege Log; United States' Tenth Privilege Log; United States' Eleventh Privilege Log; United States' Twelfth Privilege Log. See Mem. in Supp. of Def.'s Mot. to Compel Production of Documents, Exs. C–J, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Nov. 26, 2014) [Dkt. No. 213] (hereinafter Motion to Compel) (containing these privilege logs). *3 Prior to the Special Master's appointment, on numerous occasions primarily through written communications, Life Care argued to the Government that the privilege logs contained insufficient information to support the Government's claim that the documents being withheld were protected by the deliberative process privilege. Specifically, Life Care asserted that the United States' privilege logs neither established that the documents were pre-decisional and/or deliberative, nor that the disclosure of the documents would negatively affect the Government's exercise of its duties. Mot. to Compel, Exs. K–O (Feb. 5, 2014, June 17, 2014, Oct, 16, 2014, Oct. 28, 2014, Nov. 17, 2014, correspondence between the United States and Life Care). B. Life Care's Motion to Compel Despite the multiple communications between the parties regarding the basis for and validity of the Government's assertion of the deliberative process privilege over the documents in the United States' Third, Sixth, Seventh, Eighth, Tenth, Eleventh, and Twelfth Privilege Logs, they did not reach an agreement. Life Care filed a Motion to Compel Production of Documents on November 26, 2014, requesting that the Court order the Government to produce the documents included on the above-referenced privilege logs, either in their entirety or in redacted form. See generally Mot. to Compel. Extensive briefing by both parties followed. Life Care presented detailed arguments regarding the legal standards applicable to the various types of documents being withheld by the Government pursuant to the deliberative process privilege. Mot. to Compel. 3–22. In addition, Life Care contended that the Government's privilege logs were insufficient and that its need for the documents at issue outweighs the Government's interest in protecting the documents from disclosure. See, e.g., Mot. to Compel 23. In opposition to the Motion to Compel, the Government presented counterarguments regarding the applicable legal standards, and claimed that its assertions of the deliberative process privilege are entitled to a presumption of validity. United States' Mem. in Opp'n to Def.'s Motion to Compel Production of Documents, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Jan. 12, 2014) [Dkt. No. 229] (hereinafter Opposition to Compel). In addition, in support of its privilege assertions, the Government presented declarations from Elizabeth Richter, the Deputy Director of the Centers for Medicare and Medicaid Services (“CMS”), and Jodi D. Nudelman, the Regional Inspector General for the Office of Evaluation and Inspections in the Office of Inspector General for the United States Department of Health and Human Services (“HHS”). Decl. of Elizabeth Richter, Opp'n to Compel Ex. 3 [Dkt. No. 229-3] (hereinafter Richter Declaration); Decl. of Jodi D. Nudelman, Opp'n to Compel Ex. 4 [Dkt. No. 229-4] (hereinafter Nudelman Declaration). Life Care filed a Reply providing additional argument with respect to the law on the application of the deliberative process privilege and the substandard nature of the Government's privilege logs. Reply in Support of Def.'s Mot. to Compel Production of Documents, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Jan. 20, 2015) [Dkt. No. 230] (hereinafter Reply to Compel). Life Care also asserted that the declarations provided by the Government were deficient because the declarants had not personally reviewed each document at issue. Reply to Compel 4. Life Care also argued for the appropriateness of an in camera review of the documents at issue. Reply to Compel 3. The Government submitted a Sur-Reply to address Life Care's allegation that the declarations filed in opposition to the Motion to Compel could not be considered, absent the personal review of all of the relevant documents by the declarants, and requesting additional time for such a review should the Court determine it to be necessary. Sur-Reply in Opp'n to Def.'s Mot. to Compel Production of Documents, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Feb. 23, 2015) [Dkt. No. 249] (hereinafter Sur-Reply to Compel). C. Appointment of Special Master *4 After considering the parties' myriad legal and factual submissions and hearing the parties in person during a status conference on January 22, 2015, the Court informed Life Care and the Government of its intention to appoint a Special Master to review the disputed documents, and provided them with an opportunity to submit the names of up to three suggested candidates and “a proposed standard that they believe the master should apply when reviewing the documents.” Jan. 22, 2015 Order 2, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Jan. 22, 2015) [Dkt. No. 233]. The parties filed matters under seal on February 6, and February 10, 2015, and had another opportunity to be heard on February 11, 2015. See Dkt. Nos. 239, 240, 241, 243. The Court subsequently entered an Order formally referring the documents identified in Life Care's Motion to Compel to the Special Master for review. Apr. 27, 2015 Order, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Apr. 27, 2015) [Dkt. No. 274] (hereinafter April 27 Order). III. AUTHORITY AND RESPONSIBILITIES OF THE SPECIAL MASTER A. Special Master's Role As outlined by the Court, the role of the Special Master is to “perform a review of the documents over which the Government has claimed the deliberative process privilege and apply the standard identified by the Court to determine whether the privilege applies.” Apr. 27 Order 10. To do so, the Court provided the Special Master with “the rights, powers, and duties provided in [Federal Rule of Civil Procedure] 53,” and authority to “adopt such procedures as are not inconsistent with that Rule or ... orders of the Court.” Apr. 27 Order 10. It also empowered the Special Master to communicate ex parte with the parties and the Court. Apr. 27 Order 10. The Order specifies that the Special Master's review was not to “extend to balancing the competing interests of the parties if documents are deemed privileged, but rather will be limited to evaluating whether the documents at issue fall within the deliberative process privilege as defined by the standard set forth” by the Court. Apr. 27 Order 9–10. The Court provided that the Special Master would review the documents and set forth the relevant findings of fact and conclusions of law in a final report pursuant to Rule 53(f). Apr. 27 Order 12. Further, the Court directed that the report identify the Special Master's activities as part of the review, state the status of matters within his purview, and state any outstanding issues that may require Court action. Apr. 27 Order 12. While the Court initially ordered that the report and recommendation be filed by July 15, 2015, Apr. 27 Order 12, upon request by the Special Master, the Court extended the deadline until August 31, 2015, Order, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Jul. 10, 2015) [Dkt. No. 299] (hereinafter July 10 Order). B. Legal Standard Established by the Court In its Order, the Court set forth the legal standard to be applied by the Special Master in reviewing the documents and “identifying whether documents fall under the deliberative process privilege.” Apr. 27 Order 10. As the Court explained: Federal Rule of Civil Procedure 26(b)(1) describes the scope of discovery as “any nonprivileged matter that is relevant to any party's claim or defense –including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.” Fed. R. Civ. P. 26(b)(1). The United States Supreme Court has construed the term “relevant” to include “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501 (1947)). Thus, the scope of discovery under Rule 26 is “traditionally quite broad.” Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir. 1998). *5 April 27 Order at 3–4. With respect to the deliberative process privilege, the Court explained that Exemption 5 of the Freedom of Information Act “permits the withholding of ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.’ ” Apr. 27 Order 4 (quoting 5 U.S.C. § 552(b)(5)). This exemption “preserves certain privileges to agencies such as ‘the attorney-client privilege, the attorney work-product privilege and the executive ‘deliberative process' privilege.’ ” Apr. 27 Order 4 (quoting Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980)). The Court continued, explaining that: Generally, the deliberate process privilege “protects from discovery ‘documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.’ ” E.E.O.C. v. Burlington N., 615 F. Supp. 2d 717, 719 (W.D. Tenn.) objections overruled sub nom.E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621 F. Supp. 2d 603 (W.D. Tenn. 2009)(quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975)). To be covered by the deliberative process privilege, a document must be both “predecisional and deliberative.” Shafizadeh v. Bureau of Alcohol, Tobacco & Firearms, 229 F.3d 1153 (6th Cir. 2000) (quoting Schell v. United States Dep't of Health & Human Servs., 843 F.2d 933, 939 (6th Cir. 1988)). The privilege does not protect “factual information, even if such information is contained in an otherwise protectable document, as long as the information is severable.” Redland Soccer Club, Inc. v. Dep't of Army of U.S., 55 F.3d 827, 854 (3d Cir. 1995). It also does not protect communications “made subsequent to an agency decision.” United States v. Farley, 11 F.3d 1385, 1389 (7th Cir. 1993). The United States Supreme Court has described the deliberative process privilege as resting “on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news ....” Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001). The purpose of the deliberative process privilege is to assure that subordinates within an agency will feel free to provide the decisionmaker with their uninhibited opinions and recommendations without fear of later being subject to public ridicule or criticism; to protect against premature disclosure of proposed policies before they have been finally formulated or adopted; and to protect against confusing the issues and 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. Schell v. U.S. Dep't of Health & Human Servs., 843 F.2d 933, 939 (6th Cir. 1988) (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). Thus, the key issue in deciding whether the privilege applies is whether “disclosure of the materials would expose an agency's decisionmaking process in such a way as to discourage discussion within the agency and thereby undermine the agency's ability to perform its functions.” Rugiero v. U.S. Dep't of Justice, 257 F.3d 534, 550 (6thCir. 2001) (internal quotation omitted). *6 The communication itself must be “inter-agency or intra-agency,” which “includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government ... or any independent regulatory agency.” Dep't of Interior, 532 U.S. at 8-9 (quoting 5 U.S.C. § 551(1)). However, courts “have held that the exemption extends to communications between Government agencies and outside consultants hired by them.” Id. at 10. A district court has described the process of evaluating an agency's claim for the privilege as follows: that privilege must first be invoked by a high official, preferably the head of the agency. The official then must demonstrate, preferably by affidavit, precise and certain reasons why the documents should be kept confidential, and the agency must provide fairly extensive identification and description for each document, to facilitate the court's application of the balancing test. In re Consol. Litig. Concerning Int'l Harvester's Disposition of Wisconsin Steel, 1987 WL 20408, at *7 (N.D. Ill. Nov. 20, 1987). Apr. 27 Order 4–6. The Court's explanation of the appropriate legal standard to be applied in the review culminated in the Court setting forth the following specific guidance for the Special Master: In identifying whether documents fall under the deliberative process privilege, the Special Master should apply the following standards: 1. Documents that are inter-agency or intra-agency which comprise of [sic] part of a process by which governmental decisions and policies are formed that are both predecisional and deliberative and whose disclosure would affect candid deliberations within an agency shall fall within the scope of the deliberative process privilege, subject to the exceptions identified infra. a. “Predecisional” i. A document from a subordinate to a superior officer is more likely to be predecisional, whereas a document from a superior officer to a subordinate is more likely to involve a decision that has already been made. b. “Deliberative” i. A document is deliberative when it reflects the give-and-take of the consultative process. 2. Communications made by outside consultants may fall under the privilege so long as they were acting as an employee. 3. Factual information within privileged documents shall not be covered by the deliberative process privilege as long it can be severed from the privileged document. 4. Communications which were made subsequent to an agency decision shall not be covered by the deliberative process privilege. Apr. 27 Order 10–11. The Special Master has applied this standard. IV. THE SPECIAL MASTER'S RECEIPT AND REVIEW OF THE DOCUMENTS AT ISSUE A. The Special Master's Receipt of Documents and Information from the Parties Consistent with the April 27, 2015 Order, the Special Master engaged in a number of communications with both parties. These began with a series of telephone discussions between the Special Master and the lead attorneys designated by the parties, at which time the Special Master conferred with both sides regarding the document review process that was going to be applied. This then progressed to a series of written and telephone communications with the parties to obtain copies of the documents at issue in Life Care's Motion to Compel, additional information necessary to complete the task assigned by the Court, and answers to questions to the extent they arose during the review process. *7 The Special Master received copies of the documents at issue in Life Care's Motion to Compel in four separate productions from the Government on May 12, May 21, June 18, and July 2, 2015. Specifically: ● On May 12, 2015 the Special Master received 2,471 documents. ● On May 21, 2015, the Special Master received 46 documents. ● On June 18, 2015, the Special Master received 165 documents. ● On July 2, 2015, the Special Master received 173 documents to replace a portion of the June 18 production of documents.[6] The productions above ultimately resulted in 2,697 documents and 45,321 pages for review by the Special Master. The Special Master also communicated with each of the parties on a number of occasions to request additional information or clarification related to its review of the documents in dispute. This specifically included: ● Communications with the Government to receive electronic copies of the eight privilege logs that described the documents at issue. ● Communications with Life Care to receive electronic copies of the thirteen tables that it had filed with the Court as Exhibit A to its Motion to Compel. ● Communications with the Government to obtain additional information regarding the individuals and third parties that appear on the privilege logs, the electronic production data provided with the documents at issue, and/or the documents under review.[7] ● Communications with the Government and Life Care to discuss certain discrepancies in the Bates numbers used in the United States' privilege logs and to identify certain documents that had not yet been produced. ● Communications with the Government regarding documents over which the Government had withdrawn its claims of privilege. B. Documents Over Which the United States Withdrew its Assertion of Privilege The Government withdrew its assertion of the deliberative process privilege on a number of documents subject to the discovery dispute. First, on January 21, 2015, the Government retracted its privilege assertion over 262 documents. Opp'n to Compel Ex. 1. Second, in its May 21, 2015 correspondence to the Special Master, the Government advised of its intent to retract its privilege assertion over approximately 131 additional documents.[8] *8 In total, due to overlap between the two groups of documents, the Government affirmatively withdrew its assertions of privilege in its entirety over 343 documents and redacted (by line and paragraph, or by page) an additional seven documents. These documents are identified in Attachment A as “Privilege Assertion Withdrawn.” C. The Organization of the Special Master's Review and Evaluation Process As documents were received from the Government, and as contemplated by the Court's order, the Special Master transmitted those documents and data to a third party electronic discovery vendor to create a document review database. Attachment A identifies all documents at issue in Life Care's Motion to Compel by Bates number, additional information regarding those documents from both parties, and the Special Master's ultimate conclusions regarding the privileged nature of each document. Pursuant to the Court's Order, the Special Master used King & Spalding attorneys to assist in the review of documents. See Apr. 27 Order 12. The review was tailored specifically to the legal standard as enumerated by the Court, with the attorney reviewers identifying whether each document met the elements of that legal standard. The results of that analysis were then used to populate certain fields reflected in Attachment A. In the database, the documents were reviewed in groupings based on Life Care's tables, see Mot. to Compel Ex. A, to make the review process more efficient and to ensure consistent treatment of similar documents, i.e., attorney reviewers were able to review similar documents or documents concerning similar issues one after another. As referenced above, the Special Master engaged a team of associates to conduct the review, who were supervised by senior attorneys. Meetings were held with the reviewing and supervising attorneys to address questions on an ongoing basis in order to most efficiently complete the review. In addition to this Report, the results of the Special Master's review are captured in Attachment A. This chart identifies: ● the complete Bates number range of each document, on an individual basis; ● parent/child relationships between documents;[9] ● the Life Care Table on which the document appears; ● the United States privilege log on which the document appears; ● the descriptions used by the United States on its privilege logs; ● whether the Special Master recommends that the document be withheld or produced based on its evaluation of the deliberative process privilege; and, ● whether the Special Master recommends the document be produced in redacted form based on its evaluation of the severability of information contained in the document. *9 As part of its evaluation of the deliberative process privilege and to determine whether the legal standard set out by the Court had been met, the Special Master also made determinations regarding: ● whether the document reflects an inter/intra agency communication; ● whether the document is pre-decisional; ● whether the document reflects a deliberative communication; ● whether the document reflects a communication with outside consultants; and, ● if the document reflects a communication with outside consultants, whether those outside consultants were acting as employees of the Government. Attachment A also addresses the documents over which the Government has withdrawn its claims of privilege: ● whether the United States has withdrawn its assertion of privilege on the document; and, ● whether the document is identical to documents for which the United States has withdrawn the assertion of privilege, but for which the Government has not explicitly withdrawn its assertion of privilege.[10] Finally, Attachment A also identifies a limited number of documents for which there were technical issues that impacted the Special Master's review and evaluation of those documents, but were resolved as described in the footnote below.[11] D. Matters Considered During the Special Master's Review and Evaluation Process *10 In performing its review of the documents at issue and evaluating whether the deliberative process privilege applies – based on the legal standard provided by the Court – the Special Master notes that “[t]he party asserting a privilege to bar discovery bears the burden of establishing the privilege applies.” Equal Empl. Opportunity Comm'n v. Tex. Hydraulics, Inc., 246 F.R.D. 548, 551 (E.D. Tenn. 2007) (citing United States v. Dakota, 197 F.3d 821, 825 (6th Cir. 1999)). Accordingly, the Special Master considered several sources of factual information: the documents themselves, the pleadings of the parties, the Government's privilege logs, certain publicly available information, and additional information received from the parties. The Documents The Special Master reviewed and evaluated each document on its face in an attempt to determine whether the document met the elements of the legal standard put forth by the Court – specifically as to whether it was an inter/intra agency communication or one with a consultant to whom the privilege would extend, whether the document was deliberative and pre-decisional, and whether disclosing the document would be expected to chill government communications going forward. The Special Master also noted any markings indicating that the document at issue was a privileged document or a draft document, such as a “privileged” or “draft” stamp or labeling, redline edits, comments, highlighting, or handwritten notes. The Special Master notes that only a minority of documents over which the Government has asserted a claim of deliberative process privilege bore any “privilege” or “confidentiality” markings. The documents at issue were likewise rarely clearly labeled as “draft,” even when the surrounding context clearly indicated that was the case. With that said, the Special Master recognizes that courts regularly emphasize that “privilege” or “confidentiality” markings do not automatically create a privilege that is otherwise not warranted, nor is their absence a fatal flaw. See, e.g., Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 587 F. Supp. 2d 548, 564 (S.D.N.Y. 2008) (“The fact that the e-mails contain a warning indicating they contain ‘PRIVILEGED AND CONFIDENTIAL INFORMATION,’ does not transform them from nonprivileged communications into privileged communications.”); In re Grand Jury Proceedings, 2001 U.S. Dist. LEXIS 15646, at *36 (S.D.N.Y. Oct. 3, 2001) (“While the determination of whether a document is privileged does not depend upon the technical requirement of a privilege legend, the existence of such a legend may provide circumstantial evidence that the parties intended certain communications to be privileged.”); Ledgin v. Blue Cross & Blue Shield of Kansas City, 166 F.R.D. 496, 499 (D. Kan. 1996) (“Attorney Work Product” marking not sufficient to render a document protected). The Special Master also reviewed additional information in the metadata of the documents including, to the extent provided, custodians, filepath names, and created and modified dates.[12] The Special Master also considered a document's parent document for additional relevant information or context. The Parties' Pleadings The Special Master considered the pleadings of both parties generally and within the context of each Table of documents. While the Special Master relied on the solely factual statements contained in the Richter and Nudelman Declarations when attempting to determine the context of the individual documents under review, the Special Master did not rely on either party's legal advocacy as itself being factual evidence. The Government's Privilege Logs *11 For each document, the Special Master also reviewed and considered the Government's description in its privilege logs. Publicly Available Information In very limited instances, the Special Master felt that additional information beyond the above sources might be useful in evaluating the documents for purposes of the deliberative process privilege. This occurred when the Special Master had continued questions regarding whether the document at issue was a draft, final, or a publicly released document. In those instances, the Special Master performed limited internet searches for public or final versions of the disputed documents. For example, the Special Master performed searches for final rules, proposed rules, consultant reports, and reports to Congress. The limited times this occurred are noted below in Section V. Additional Information from the Parties Lastly, the Special Master took into consideration additional information received from the parties. Early in the review, the Special Master requested that the Government provide additional information regarding Government personnel and Government contractors and/or consultants. In response to the Special Master's request for such information, the Government pointed to its November 11, 2014, Responses to Defendant's Second Set of Interrogatories, and provided three organizational charts and links to HHS's online employee directory and a website with federal employee General Schedule (GS) level information. While the Special Master reviewed this information, the Special Master did not ultimately find it determinative in evaluating any document for purposes of the deliberative process privilege. In a subsequent letter dated June 23, 2015, the Government also provided a chart with additional information with regard to CMS consultants as identified in a search of the documents in dispute. While the Special Master reviewed this information, the Special Master did not ultimately find it determinative in evaluating any document for purposes of the deliberative process privilege. Finally, the Government also provided additional information regarding the OIG documents in a letter dated June 18, 2015. While the Special Master reviewed this information, the Special Master did not ultimately find it determinative in evaluating any document for purposes of the deliberative process privilege.[13] E. Issues in the United States' Privilege Logs and Related Submissions Where a party is withholding information, otherwise discoverable, on the basis of privilege, that party must “describe the nature of the documents, communications, or tangible things not produced or disclosed – and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.” FED. R. CIV. P. 26(b)(5). To comply with Rule 26, a privilege log should identify each document, the date of said document, the individuals who were parties to the communications, and a sufficient description to enable evaluation of the claim. See Glidden Co. v. Jandernoa, 173 F.R.D. 459, 476, 483 (W.D. Mich. 1997) (finding that a log must be “sufficiently detailed” and “complete” so “the court can judge the propriety of assertion of the privilege” and commenting that the date of a document is “often crucial in determining the existence of privilege”); SPX Corp. v. Bartec USA, 247 F.R.D. 516, 527 (E.D. Mich. 2008) (stating a privilege log should “identify each document and the individuals who were parties to the communications, providing sufficient detail to permit a judgment as to whether the document is at least potentially protected from disclosure”). *12 With those requirements in mind, the Special Master notes a number of issues in the Government's privilege logs produced to Life Care – largely with respect to the level of detail and specificity included therein – that caused the Special Master to expend considerably more time and effort conducting this review than may otherwise have been required.[14] Such deficiencies include instances of the following: ● lack of author and/or recipient information; ● lack of dates or broad date ranges for documents; ● insufficient or inaccurate document descriptions; ● lack of descriptions for attached documents, i.e., a description for a cover email, but no description for the email's attachments; and, ● seemingly unrelated documents included in a single log entry.[15] As noted above, these issues made the review process more complicated. For instance, the Special Master spent a significant amount of time and effort to understand the context and underlying factual information related to each document – context that might otherwise have been apparent from a more robust privilege log. Likewise, additional effort was necessary when describing the basis for the Special Master's privilege determinations in Section V below –unable to merely affirm the descriptions contained in the privilege logs, the Special Master feels it necessary to provide a synopsis of the types of documents contained in each of Life Care's Tables. F. The Special Master's Review of Additional Legal Authority During the course of the Special Master's review, the question arose whether the Special Master possessed the authority to review sources of law or guidance outside those cited in the Court's April 27, 2015 Order and/or outside the documents and pleadings filed by the parties in the above-mentioned civil actions. The Special Master concluded that it did indeed have this authority pursuant to the Court's Order and Rule 53(c). See July 16, 2015, Letter from King & Spalding LLP to U.S. Dep't of Justice and Life Care re Special Master's Review of Additional Legal Authority. The Court provided the Special Master with “the rights, powers, and duties provided in Rule 53,” and the authority to “adopt such procedures as are not inconsistent with that Rule or ... the orders of the Court.” Apr. 27 Order 10. Rule 53, in turn, permits the Special Master to “take all appropriate measures to perform the assigned duties fairly and efficiently.” FED. R. CIV. P. 53(c)(1)(B). The Special Master found that reviewing sources of law outside the April 27, 2015 Order and/or the parties' pleadings would not be inconsistent with Rule 53. The Special Master also found that it has the authority to review any sources of law that are outside of, but not inconsistent with, the April 27, 2015 Order or any other order of the Court. The Special Master finally found that such activities were likely to aid the Special Master's ability to perform the duties assigned to it by the Court fairly and efficiently. *13 Identified below are sources of law consistent with the legal standard established in the Court's April 27, 2015 Order – some of which were in fact referenced by the Court, and/or by the parties in their pleadings – that were informative but not controlling with respect to the Special Master's factual and legal findings.[16] In many cases, these authorities are merely illustrative examples in which other courts applied the same legal standards established by the Court to particularly analogous factual scenarios. Predecisional Documents. The Special Master reviewed additional guidance regarding whether documents were “predecisional” and possibly covered or “made subsequent to an agency decision” and therefore not covered by the privilege. Apr. 27 Order 10–11; see generally In re Diet Drugs Prods. Liab. Litig., No. 1203, 2000 WL 1545028, at *4 (E.D. Pa. Oct. 12, 2000) (“The privilege does not protect ... ‘[c]ommunicatons made subsequent to an agency decision.’ ”) (internal citations omitted). The Special Master specifically looked at how courts have classified the relevant agency “decision.” Additionally, the Special Master reviewed guidance for other potential indications of when a document could be “predecisional” in addition to the Court's finding that a “document from a subordinate to a superior officer is more likely to be predecisional, whereas a document from a superior officer to a subordinate is more likely to involve a decision that has already been made.” Apr. 27 Order 11. ● The Sixth Circuit has held a document may be predecisional even where “no action has been taken by [ ] management in response to the subject memorandum,” or whether or not “a specific decision to which it relates can be identified.” Schell v. United States Dep't of Health & Human Servs., 843 F.2d 933, 941 (6th Cir. 1988) (citing plaintiff's arguments and D.C. Circuit case law). “When specific advice is provided, including opposition to the suggestions of others, it is no less predecisional because it is accepted or rejected in silence, or perhaps simply incorporated into the thinking of superiors for future use.” Id. (affirming denial of FOIA request for inter–or intra-agency memoranda under Exemption 5). ● Similarly, the Supreme Court has held that “the need to protect pre-decisional documents does not mean that the existence of the privilege turns on the ability of an agency to identify a specific decision in connection with which a memorandum is prepared.” Nat'l Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18 (1975). Agencies “engage[ ] in a continuing process of examining their policies” which “will generate memoranda containing recommendations which do not ripen into agency decisions.” Id. ● In light of that Supreme Court precedent, the Sixth Circuit has concluded: “We do not mean to suggest that the existence of a decision to which a requested document contributed is wholly irrelevant. On the contrary, this will be one factor, among several, to which courts should look to determine if a document is predecisional. We do not find it dispositive, however.” Schell, 843 F.2d at 941-42. *14 Deliberative Documents. The Special Master reviewed additional legal authority regarding whether documents were “deliberative,” meaning “reflect [ing] the give-and-take of the consultative process.” Order at 10. It specifically reviewed authority regarding: (1) the general boundaries of deliberative documents; (2) draft documents, including both those that contained visible edits or comments and those that did not; and, (3) unpublished statements of agency policy. 1) Deliberative Documents in General ● The distinction of deliberative documents is between “materials reflecting deliberative or policy-making processes on the one hand, and purely factual, investigative matters on the other.” U.S. Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (analyzing FOIA Exemption 5). ● Deliberative information includes “the kind of candid document expressing personal views which, if disclosed, would likely ‘stifle honest and frank communication within the agency.’ ” Schell, 843 F.2d at 940-41 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980)). “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision-making process.” Id. (quoting United States v. Nixon, 418 U.S. 683, 705 (1974)). ● For example, an agency may engage in monitoring of the implementation or impact of its rulemaking activities. Descriptions of these monitoring efforts do not constitute agency decisionmaking for purposes of Exemption 5 where they “do not suggest or recommend future agency policy, but rather, they assess how well existing policies are being implemented.” Md. Coal. for Integrated Educ. v. Dep't of Educ., No. 89-cv-2851, 1992 WL 1311694, at *2 (D.D.C. July 20, 1992). However, to the extent that these documents show “ ‘[t]he work of the assistants in separating the wheat from the chaff’ ” and selecting certain data or information for consideration by their superiors from the total mass of data available, they are deliberative. McKinley v. Fed. Deposit Ins. Corp., 744 F. Supp. 2d 128, 140 (D.D.C. 2010) aff'd sub nom. McKinley v. Bd. of Governors of Fed. Reserve Sys., 647 F.3d 331 (D.C. Cir. 2011) (quoting Montrose Chem. Corp. of Cal. v. Train, 491 F.2d 63, 71 (D.C. Cir. 1974)). ● Likewise, non-binding budgetary recommendations submitted to agency superiors or OMB can “constitute predecisional deliberative material, [that] the agency can withhold [ ] under Exemption 5.” Bureau of Nat'l Affairs, Inc. v. United States Dep't of Justice, 742 F.2d 1484, 1498 (D.C. Cir. 1984). “[T]he Supreme Court deemed it ‘beyond question’ that documents prepared by agency officials to advise the President were within the coverage of Exemption 5 because they were ‘intra-agency’ or ‘inter-agency’ memoranda or ‘letters' that were used in the decisionmaking processes of the Executive Branch.” Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125, 129-30 (D.C. Cir. 2005) (quoting Mink, 410 U.S. at 92). Because agencies make budget recommendations, which the agency “submitted to the OMB and which the OMB then used to make its own recommendations to the President, because ‘the President ... makes the final decision concerning what budget requests should be submitted to the Congress,’ ” these documents are pre-decisional and deliberative. Id. (quoting Bureau of Nat'l Affairs, 742 F.2d at 1496-97). *15 2) Draft Documents ● The Sixth Circuit has specifically held that “recommendations, draft documents, proposals, suggestions, and other suggestive documents that reflect the opinions of the writer rather than the policy of an agency” are protected by FOIA Exemption 5. Schell, 843 F.2d at 940 (citing Coastal States Gas Corp., 617 F.2d at 866). ● The portion of the D.C. Circuit opinion relied on by the Sixth Circuit in Schell above continues: “Documents which are protected by the privilege are those which would inaccurately reflect or prematurely disclose the views of the agency, suggesting as agency position that which is as yet only a personal position.” Coastal States Gas Corp., 617 F.2d at 866. “To test whether disclosure of a document is likely to adversely affect the purposes of the privilege, courts ask themselves whether the document is so candid or personal in nature that public disclosure is likely in the future to stifle honest and frank communication within the agency.” Id. ● Draft documents that “represent the opinions and recommendations” of the employees of a government agency that will contribute to the agency's decision making process represent the “give-and-take” that is protected by the deliberative process privilege. Nat'l Wildlife Fed'n v. U.S. Forest Serv., 861 F.2d 1114, 1122 (9th Cir. 1988). “To the extent [an adverse party] seeks [to] ... uncover any discrepancies” by comparing draft documents with final agency decisions “it is attempting to probe the editorial and policy judgment of the decisionmakers. Materials that allow the public to reconstruct the predecisional judgments” of an agency are protected by the privilege in order to encourage “uninhibited decisionmaking.” Id. ● Draft talking points that have not been adopted or approved are “internal proposal[s]” that are “predecisional to the actual communication of such information and issues.” Sierra Club v. U.S. Dep't of Interior, 384 F. Supp. 2d 1, 19 (D.D.C. 2004) (finding that draft talking points are protected by Exemption 5 as the “essence of internal deliberations”). However, talking points that post-date the relevant agency decision “cannot be ‘predecisional.’ ” Trea Senior Citizens League v. U.S. Dep't of State, 994 F. Supp. 2d 23, 36 (D.D.C. 2013) (applying FOIA Exemption 5). Such documents can be redacted if they contain any information about future decisions. Id. ● Draft briefing papers containing analysis regarding potential policy changes are also predecisional and deliberative. See Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 137-38 (D.D.C. 2011) (finding that draft briefing paper protected under FOIA Exemption 5). Even final internal briefing papers that are “created by agency staff to ‘inform their management’ about issues” and the formulation of policy decisions are predecisional and deliberative. Shurtleff v. U.S. Envtl. Prot. Agency, No. 10-cv-2030, 2012 WL 4472157, at *17 (D.D.C. Sept. 25, 2012) report and recommendation adopted in part, rejected in part sub nom. Shurtleff v. U.S. Envtl. Prot. Agency, 991 F. Supp. 2d 1 (D.D.C. 2013). *16 3) Unpublished Statements of Agency Policy ● Final statements of agency policy, regardless of whether they have been published or publicly disclosed, are not covered by the privilege. Coastal States Gas Corp., 617 F.2d at 868 (“No ‘decision’ is being made or ‘policy’ being considered; rather the documents discuss established policies and decisions the agency regulations in the light of a specific, and often hypothetical, fact pattern.”) ● Similarly, the Northern District of Ohio has held that “memoranda, approved by the [agency director]” and setting forth “the agency's policy regarding [a topic]” are “unpublished statements of policy and plans which have been adopted by the agency, see 5 U.S.C. § 552(a)(2)(B), as well as instructions to agency staff which affect a member of the public, see § 552(a)(2)(C) ....” Firestone Tire & Rubber Co. v. Coleman, 432 F. Supp. 1359, 1365 (N.D. Ohio 1976) (addressing FOIA Exemption 7 regarding “investigatory files”). Severable Factual Information. The Special Master reviewed additional guidance regarding whether factual information contained “within privileged documents shall not be covered by the deliberative process privilege [because] it can be severed from the privileged document.” Order at 10. This specifically included legal authority regarding: (1) what types of factual information courts have found to be severable; (2) the extent of the burden that can be imposed to sever purely factual information; (3) whether factual information can be severed from draft documents; and, (4) whether and to what extent data or data analyses are severable. 1) Factual Information That Is Severable ● The Sixth Circuit has advised that not all factual information is severable. “In some circumstances,” disclosure even of purely factual information can “expose the deliberative process within an agency.” Schell, 843 F.2d at 940 (citing Mead Data Ctr., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 256 (D.C. Cir. 1977)). ● Accordingly, there may be instances in which “there is nothing that can be divorced from the memorandum and disclosed, inasmuch as the document contains only advice, opinion and argumentation.” Schell, 843 F.2d at 942 n.6. ● The Supreme Court has also recognized that material can “by their very nature, [be] a blending of factual presentations and policy recommendations that are necessarily inextricably intertwined with policymaking processes.” Mink, 410 U.S. at 92 (internal quotation marks omitted). Likewise, “[t]he deliberative process privilege does not shield ... material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government's deliberations.” Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 13 (D.C. Cir. 2014) (citing In re Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997)). ● In the FOIA context, “the D.C. Circuit explained that the applicability of the privilege ‘does not turn on whether the material is purely factual in nature or whether it is already in the public domain, but rather on whether the selection or organization of facts is part of an agency's deliberative process.’ ” Am. Petroleum Tankers Parent, LLC v. United States, 952 F. Supp. 2d 252, 269 (D.D.C. 2013) (quoting Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011)). *17 ● A D.C. Circuit opinion – which has been cited by the Sixth Circuit in other regards, see e.g., Schell, 843 F.2d at 940 – attempted to provide a “potentially useful approach, to be tried and improved by experience, as the courts struggle to strike a balance between the unavoidably conflicting values implicated by the segregability requirement of the FOIA.” Mead Data Cent., Inc., 566 F.2d at 261. “For example, if only ten percent of the material is non-exempt and it is interspersed line-by-line throughout the document,” then it may not be “reasonably segregable because the cost of line-by-line analysis would be high and the result would be an essentially meaningless set of words and phrases.” Id. “On the other extreme, if a large proportion of the information in a document is nonexempt, and it is distributed in logically related groupings,” then the factual information should be disclosed unless: (1) the “burden of separation justifies nondisclosure”; or, (2) “disclosure of the non-exempt material would indirectly reveal the exempt information.” Id. 2) The Burden of Severing Factual Information ● While the Sixth Circuit has not specifically discussed the appropriate burden to be imposed on the government to segregate information, other circuits have addressed “the burden that segregation may impose on the Government.” Rugiero v. U.S. Dep't of Justice, 234 F. Supp. 2d 697, 709 (E.D. Mich. 2002) (citing Solar Sources, Inc. v. United States, 142 F.3d 1033, 1038-39 (7th Cir. 1998)) (finding that because agency would require eight work-years to identify all nonexempt documents in millions of pages of files, the very small percentage of documents that could be released were not “reasonably segregable”); Lead Indus. Ass'n v. Occupational Safety & Health Admin., 610 F.2d 70, 86 (2d Cir. 1979) (“[I]f the proportion of nonexempt factual material is relatively small and is so interspersed with exempt material that separation by the agency and policing of this by the courts would impose an inordinate burden, the material is still protected because, although not exempt, it is not ‘reasonably segregable.’ ”) (citing Mead Data Cent., Inc., 566 F.2d at 260-61); cf.Willamette Indus., Inc. v. United States, 689 F.2d 865, 868 (9th Cir. 1982) (“[L]arge costs of editing cannot per se make the request unreasonable.”). ● In addition, on remand from the Sixth Circuit to determine whether the information in withheld documents was so intertwined with other protected material as to be inextricable, the Eastern District of Michigan addressed this issue. Rugiero, 234 F. Supp. 2d at 709. It found that the “burden of segregation does not outweigh the significant value of the information to Plaintiff because it does not appear that the Government would have to expend a large amount of additional time and resources to provide Plaintiff with the segregable information.” Id. It was persuaded by the following: (1) “the Government is not faced with segregating information from millions pages but rather only from some 364 pages”; (2) notations on the protected documents and affidavits indicated that the Government had “already expended the time and resources necessary to determine the segregability of the withheld pages.” Id. 3) Severability of Factual Information Contained in Draft Documents ● Addressing the severability of factual information from draft documents can be particularly difficult. “Although purely factual material that is segregable from opinion material is generally not protected, even factual material may come within the [deliberative process privilege] if the ‘manner of selecting or presenting those facts would reveal the deliberative process, or if the facts are inextricably intertwined with the policymaking process.’ ” Hamilton Sec. Group Inc. v. U.S. Dep't of Housing & Urban Dev., 106 F. Supp. 2d 23, 33 (D.D.C. 2000) (citingRyan v. Dep't of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980)). Revealing decisions made by an agency, including decisions regarding what factual information should be gathered and considered during the agency's exercise of its duties, “would certainly chill further agency deliberations.” Id. Further, as the Ninth Circuit has noted, “[t]o the extent [an adverse party] seeks [to] ... uncover any discrepancies” by comparing draft documents with final agency decisions “it is attempting to probe the editorial and policy judgment of the decision makers. Materials that allow the public to reconstruct the predecisional judgments” of an agency are protected by the privilege in order to encourage “uninhibited decisionmaking.” Nat'l Wildlife Fed'n, 861 F.2d at 1122. *18 4) Severability of Factual Information Contained in Data or Data Analyses ● Spreadsheets and other analyses of raw data, while when viewed independently may not represent deliberative information, are protected by the deliberative process privilege when they are used by a government agency in coming to conclusions that are incorporated by the agency into its deliberative process. Reliant Energy Power Generation Inc. v. Fed. Energy Regulatory Comm'n, 520 F. Supp. 2d 194, 205-06 (D.D.C. 2007). Similarly, other courts have noted that while raw data is factual information that should be disclosed when severable, reviews, analyses, or appraisals of such data are deliberative and protected if they are non-final. See e.g., Firestone Tire & Rubber Co., 432 F. Supp. at 1367. ● “In the context of the Freedom of Information Act,” the D.C. Circuit has noted that data or data analysis would be covered by the deliberative process privilege if it reflected internal judgment regarding what of the broader universe of facts are relevant. Am. Petroleum Tankers Parent, LLC, 952 F. Supp. 2d at 269-70. V. THE SPECIAL MASTER'S RECOMMENDED FINDINGS As noted above, in identifying the documents subject to dispute, Life Care placed these documents into thirteen separate Tables, which it presented in Exhibit A to its Motion to Compel. For ease of reference, the Special Master presents its recommendations by the Table groupings adopted by Life Care.[17] A. Impact of the United States' Withdrawal of Its Assertion of the Privilege As noted above in Section IV.B, the Government affirmatively withdrew its assertions of privilege over 343 documents in their entirety, and over seven documents in part (and provided redacted versions of these seven documents by line and paragraph, and/or by page). These documents are identified in Attachment A. The withdrawal of privilege as to these documents is also effective with respect to a number of other duplicate documents within the universe of documents at issue. Within the universe of documents at issue, 61 documents are exact duplicates –based on a review of the MD5 Hash values[18] provided by the Government in its production of the documents at issue, or in a limited number of cases based on a line-by-line comparison – of documents over which the Government has withdrawn its assertion of privilege. The Special Master recommends that the Court find that the Government's withdrawal of privilege applies to these 61 duplicate documents,[19] and has identified them on Attachment A as “Identical to Privilege Assertion Withdrawn.” B. Recommendations Regarding Documents Identified in Life Care's Table 1 1. Summary of Documents in Table 1 *19 Table 1 contains 772 documents originally withheld from production by the Government as protected by the deliberative process privilege.[20] As to 69 documents in Table 1, the Government has withdrawn its assertion of the deliberative process privilege. After taking into account any “Container Files” and/or “Unopenable Spreadsheet Files,” this resulted in a total of 684 documents for the Special Master's review. Life Care describes these documents as “draft reports, cover memoranda, and summary statements.” Mot. to Compel 9. Similarly, the Government describes these documents as draft CMS reports and reports to the Office of Inspector General. Opp'n to Compel 16–22. More specifically, the Government summarizes these draft reports as falling within three categories: (1) drafts of a report to Congress regarding Medicare's Prospective Payment System and the correspondence attached to these drafts; (2) other draft CMS reports; and, (3) draft reports prepared by CMS contractors. Opp'n to Compel 16–21. The Special Master's review of these documents confirms both Life Care's and the Government's descriptions as being “draft reports.” Those draft reports fall within the following categories: ● multiple drafts of Reports to Congress titled, “Patient Classification Under Medicare's Prospective Payment System (PPS) for Skilled Nursing Facilities (SNF)”; ● drafts of “Summary Statements” or points to be communicated regarding proposed changes and attaching reports reflecting those changes; ● multiple drafts of “STRIVE Final Reports for Phase I and II” including attachments and/or embedded documents reflecting internal deliberations about what to include in the final draft; ● multiple Drafts of “Early Alert Memorandum Report: Changes in Skilled Nursing Facilities Billing in Fiscal Year 2011, OEI-02-09-00204”; ● draft correspondence to Congress regarding proposed changes to SNF Rules and other policy considerations; and, ● miscellaneous draft reports from outside consultants, HHS OIG, and Action Request memoranda regarding proposed changes to SNF Rules. 2. The Parties Arguments Regarding the Documents in Table 1 In its Motion to Compel, Life Care argues that the draft reports, cover/briefing memoranda, and summary statements contain factual information and, accordingly, are not covered by the deliberative process privilege because that privilege only applies to the “opinion or recommendatory portion of the document.” Mot. to Compel 9–10. Life Care bases its position on its review of the final versions of the reports, cover/briefing memoranda, and summary statements, arguing that since these final versions contain “exclusively factual information” the “drafts of these types of documents would likewise include only factual information that is not protected by the deliberative process privilege.” Mot. to Compel 10. Life Care also contends that, to the extent the draft reports contain opinions and or recommendations, the factual information contained therein is severable and the documents should be produced in redacted form. Life Care argues that “purely factual information that is ‘severable without compromising the private remainder of the document’ does not enjoy the protection afforded by the deliberative process privilege.” Mot. to Compel 8 (quoting Mink, 410 U.S. at 89). It also argues that any portions of a draft report that were ultimately published in any agency document can no longer be considered privileged. Specifically, it submits that even if the documents the Government describes as “draft reports, cover/briefing memoranda, and summary statements were ‘predecisional’ and ‘deliberative’ at the time they were prepared, they lose their ‘predecisional’ status ‘if [they are] adopted, formally or informally, as the agency position ... or [are] used by the agency in its dealing with the public.’ ” Mot. to Compel 8 (quoting Coastal States Gas Corp., 617 F.2d at 866). *20 In response, the Government maintains that draft reports are protected by the deliberative process privilege “because such documents expose the internal thoughts, deliberations, and editorial judgments of agency staff, and therefore the process of their deliberations.” Opp'n to Compel 6. The Government submits that “[d]raft documents, by their very nature, are typically predecisional and deliberative.” Opp'n to Compel 6 (citing Exxon Corp. v. Dep't of Energy‚ 585 F. Supp. 690, 698 (D.D.C. 1983)). The Government contends that it is “well established that the privilege protects not only documents specifically labeled as containing policy recommendations, but also factual material and data when producing such information would reveal aspects of the deliberative process.” Opp'n to Compel 6. In terms of severability, the Government argues that producing redacted versions of these draft documents is unnecessary because: If the segment appeared in the final version, it is already on the public record and need not be disclosed. If the segment did not appear in the final version, its omission reveals an agency deliberative process: for some reason, the agency decided not to rely on that fact or argument after having been invited to do so. Opp'n to Compel 7–8 (citing Lead Indus. Ass'n v. U.S. Occupational Safety & Health Admin., 610 F.2d 70, 86 (2d Cir. 1979)). The Government also includes arguments specific to each category of documents Life Care requested in Table 1, summarized as follows: ● Drafts Reports to Congress: According to the Government, “these documents ‘encompassed the perceived merits or concerns with potential revisions to’ the prospective payment system, as well as ‘potential issues with the research, the conclusions to be drawn from the research, the recommendations for further action, as well as the writing and editing of the report itself.’ ” Opp'n to Compel 11–12 (citing Richter Decl. ¶ 27). “Additionally, by comparing draft reports to the final version, Life Care could determine the editorial judgments made by the agency and therefore lay bare the agency's deliberative process in producing these reports.” Opp'n to Compel 12 (citing Dudman Commc'ns Corp. v. Dep't of Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987)). ● Other Draft Reports: Similarly, the Government argues that producing the draft reports created by the Medicare Ombudsman and CMS's Comprehensive Error Rate Testing program, as well as associated emails, would “expose the agency's preliminary analysis of the issues, editorial judgment, non-final policy recommendations, and the iterative revisions to the report.” Opp'n to Compel 12. ● Reports Prepared by CMS Contractors: The Government asserts that the work of consultants on drafts reports is covered by the deliberative process privilege and that “even Life Care concedes that courts have included contractors' work product within the ambit of the deliberative process privilege.” Opp'n to Compel 13 (citing Mot. to Compel 16).[21] In reply, Life Care asserts that the Government failed to address “whether the recommendations or opinions addressed within the issue draft reports were adopted, formally or informally, as the agency position on an issue or used by the agency in its dealings with the public” and that the Government “completely ignored the issue of severability.” Reply to Compel 14. 3. The Special Master's Recommendations Regarding the Documents in Table 1 In its review of the documents in Table 1, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 1, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 1 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 1, pp. 1-53. The Special Master recommends that these findings be adopted by the Court. *21 a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds 630 documents in Table 1 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents, as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the majority of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The remaining documents consist of emails containing internal deliberations, recommendations, or predecisional policy considerations, or internal memoranda containing comments and edits to drafts of reports. ● Where these documents were prepared by or shared with an outside consultant, the Special Master determined that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on its consideration of the pleadings, additional information from the parties, and the documents themselves. ● The Special Master finds that these documents do contain purely factual information but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Contain Severable Factual Information ● The Special Master finds that seven documents in Table 1 are covered by the deliberative process privilege but nonetheless contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master also finds that these documents contain some purely factual information but that this factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions and analysis. ● These documents are emails that contain factual information or non-deliberative discussions in one part of an email string and protected discussions in another section. The factual, non-deliberative discussions can be severed from the deliberative discussion contained therein. ● The Special Master has prepared redacted versions of these documents accordingly. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds 47 documents in Table 1 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. A general description of these documents and the reasoning behind the Special Master's conclusions are as follows: *22 o Final Early Alert Memorandum Report: Changes in Skilled Nursing Facilities Billing in Fiscal Year 2011, OEI-02-09-00204: One report, located at LAM001-119961, that the Government described as a “draft report” in its privilege log. Upon review of the document, however, the Special Master initially found it to be in final form both due to its date and because it was signed. The Special Master subsequently confirmed that the report was in final form by comparing it to the published version, located at http://oig.hhs.gov/oei/reports/oei-02-09-00204.pdf. The documents are identical except the signature on the published version is in electronic format rather than handwritten.[22] Accordingly, the Special Master finds that this report is not protected by the deliberative process privilege. o Copies of STRIVE Final Report: There were four documents related to the STRIVE Final Report that the Government describes as drafts, but which the Special Master has determined are in final form. The Special Master bases that finding on the discussion in cover emails, lack of edits, redlines, or comments, and a comparison to the final, published versions of the reports: · LAM001-116308 and LAM001-116545 are the STRIVE Final Report Phase I and Appendices, both dated January 2009. The cover email forwarding these documents is from 8/17/2011, more than two years after the release of the Phase I report. See LAM001-116307. · LAM001-149186 and LAM001-149418 are the STRIVE Phase II Final Report and Appendices. Here, the cover email indicates this is the “final STRIVE Phase 2 report” and that “[i]t should be ready for posting.” See LAM001-149183. o Emails without Deliberation or Substantive Discussions: The Special Master finds that certain emails were predecisional and/or do not contain deliberations regarding policy decisions. These were primarily cover emails that provided non-deliberative information regarding attached documents. o GIF or Image Files: There were 25 image files in Table 1 that were images, either blank or logos, that the Special Master finds are clearly not protected by the deliberative process privilege. o Duplicates of Documents for Which the Government Withdrew Privilege: The Special Master determined that the Government has effectively withdrawn its claim of privilege over three documents that are identical to documents over which the Government already withdrew its initial claim of privilege. The Special Master determined that these documents are duplicates, based on a review of the MD5 Hash values provided by the Government in its production load files, and thus the Government's withdrawal of privilege is applicable to those identical documents. C. Recommendations Regarding Documents Identified in Life Care's Table 2 1. Summary of Documents in Table 2 Table 2 contains eight documents originally withheld from production by the Government as protected by the deliberative process privilege.[23] As to one document in Table 2, the Government has withdrawn its assertion of the deliberative process privilege. This resulted in a total of seven documents for the Special Master's review. Based on the Government's description of these documents in its Third and Seventh Privilege Logs, Life Care categorized these documents as “fact sheets.” Mot. to Compel 9. The Special Master's review reveals that these seven documents are draft responses to various inquiries received by CMS regarding its actions, regulations, or policies. 2. The Parties Arguments Regarding the Documents in Table 2 *23 In its Motion to Compel, Life Care argues that, “[t]he very nature of these documents” makes them “purely factual” and unprotected by the privilege. Mot. Compel 9–10. The Government responds that “[d]espite their name, fact sheets are policy documents in which CMS provides additional guidance regarding its regulations or policies.” Opp'n to Compel 30 (citing Richter Decl. ¶ 41). It therefore argues that these documents include “ ‘advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and polices are formulated.’ ” Opp'n to Compel 30 (quoting Sears, 421 U.S. at 150). It further submits that these draft materials fall within the “ ‘recommendations, draft documents, proposals, suggestions, and other subjective documents which reflect the personal opinions of the writer rather than the policy of the agency’ ” discussed by the Sixth Circuit in Schell, 843 F.2d at 940. Opp'n to Compel 30–31. In reply, Life Care contends that the Government has failed to consider whether the content of any of these fact sheets was ultimately adopted and made public and is therefore severable from any protected information. Reply to Compel 18. 3. The Special Master's Recommendations Regarding the Documents in Table 2 In its review of the documents in Table 2, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 2, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 2 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 2, pp. 53-54. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that three documents in Table 2 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents, as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that all three of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or because the document at issue undated, unsigned, incomplete, or a combination. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. *24 b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master finds that four documents in in Table 2 are covered by the deliberative process privilege but nonetheless contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master also finds that these documents contain some purely factual information and finds that the factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions, and analysis. ● The Special Master finds that all four of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or because the document at issue is undated, unsigned, incomplete, or a combination. ● The Special Master has prepared redacted versions of these documents accordingly. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that all of the documents in Table 2 are protected by the deliberative process privilege. D. Recommendations Regarding Documents Identified in Life Care's Table 3 1. Summary of Documents in Table 3 Table 3 contains 985 documents originally withheld from production by the Government as protected by the deliberative process privilege.[24] However, the Government withdrew its assertion of the deliberative process privilege on 68 of those documents. After taking into account “Container Files” and/or “Unopenable Spreadsheet,” this resulted in a total of 911 documents for the Special Master's review. Based on the Government's description of these documents in the Government's Third and Sixth Privilege Logs, Life Care categorized these documents as “Spreadsheets/Data and Data Analysis.” Mot. to Compel 10–12. According to Elizabeth Richter's Declaration, these documents include: ● “Emails or Microsoft Word documents containing comments or internal deliberative discussions about the content of the proposed or final rules before finalization and issuance.” Richter Decl. ¶ 12(a). ● “Preliminary data analyses run in connection with the development of the proposed and final rules.” Richter Decl. ¶ 12(b). ● “[D]raft and preliminary data analyses” associated with draft copies of several OIG reports.” Richter Decl. ¶ 25. *25 ● “[R]esults of preliminary data tests run as part of the study team's analysis” related to STRIVE studies. Richter Decl. ¶ 34. ● “[A]nalyses which [outside contractors] prepared for DIPC” on “the effect of the changes in fiscal year 2011 and 2012 to the SNF PPS system.” Richter Decl. ¶ 38. ● “[E]mail communications and analyses discussing and/or analyzing the effectiveness of CMS's SNF rule changes or current policies, and discussing proposed analysis to be conducted and suggested policy changes to be considered and studied.” Richter Decl. ¶ 43. According to Ms. Nudelman, they also include: ● “Excel spreadsheets containing claims and MDS data which OEI chose to cull from a larger universe of data.” Nudelman Decl. ¶ 33(a). ● “[D]ata dictionaries created by OEI for the medical reviewers about the claims and MDS data variables.” Nudelman Decl. ¶ 33(b). ● “Spreadsheets created by an OEI analyst that contain medical reviewer comments from the larger database containing the survey instrument responses.” Nudelman Decl. ¶ 33(d). ● “OEI's preliminary proposals for analyzing the data and validating that analysis,” including “work papers” and “documents that were used to validate the results of the analyses.” Nudelman Decl. ¶ 34. ● “Statistical Analysis System (SAS) code containing programming logic created by the OEI report team.” Nudelman Decl. ¶ 34(a). ● Output files “from the SAS code that contain[ ] data points.” Nudelman Decl. ¶ 34(b). ● “SAS code run logs ... used to verify the programming logic.” Nudelman Decl. ¶ 34(c). The Special Master's review of these “Spreadsheets/Data and Data Analysis” confirms that the documents in Table 3 are a variety of spreadsheets and documents containing preliminary data and data analyses relating to the rulemaking process, reports, studies, and medical reviews. These documents fall into the following categories: ● data analyses underlying CMS draft rules – numerous versions of the same family of documents, and similar families of documents, particularly relating to the 2010 SNF Rule; ● substantive discussions of methodologies and draft analyses associated with the Government's rulemaking activities; ● data analyses related to CMS's Staff Time and Resource Intensity Verification (STRIVE) project;[25] ● data analyses associated with CMS's Data Assessment and Verification Program (DAVE) project; ● data analyses connected to an Acumen LLC study analyzing the effect of changes to the SNF Prospective Payment System in Fiscal Years 2011 and 2012; and, ● data analyses related to medical/clinical reviews conducted by HHS OIG during its process of drafting reports on SNFs. 2. The Parties Arguments Regarding the Documents in Table 3 Life Care raises a number of arguments regarding why these documents are not covered by the deliberative process privilege. First, it submits that some of the Government's privilege log entries were inadequate, including because the Government “changed many of the descriptions,” which “highlights the fact that the Government is playing a game of semantics in its privilege assertions [that] undermines its privilege claims.” Mot. to Compel 11. Second, Life Care asserts that information in Excel spreadsheets is purely factual, as “it is difficult to envision a spreadsheet of data that ‘reflects the give-and-take of the consultative process' as opposed to setting forth factual data.” Mot. to Compel 10 (quoting Coastal States, 617 F.2d at 866). Third, Life Care argues that lists of beneficiaries represent purely factual information that is not predecisional or deliberative. Mot. to Compel 10–11. *26 The Government responds that “factual material and data [are protected] when producing such information would reveal aspects of the deliberative process.” Opp'n to Compel 6 (citing Schell, 843 F.2d at 940). It also submits that Table 3 contains the Government's data analyses and communications related to proposed rules, which are “at the very heart of the privilege because its exposure would reveal DIPC's internal deliberations, opinions, and analysis, the agency's consideration of different proposals, and employees' candid advice offered as part of the rulemaking process.” Opp'n to Compel 23–24 (citing Richter Decl. ¶¶ 8–9, 12–13). It further submits that these documents contain “policymaking options that the staff considers and debates, including options they reject ... tentative assumptions that are later refined or rejected, the testing of different hypotheses, their revisions to the methodologies or data sources used to develop rules and policies, and their interim edits and revisions before any decision is made.” Opp'n to Compel 24. The Government also notes that “[t]he final data analysis justifying the rule ultimately adopted by the agency is publicly released.” Opp'n to Compel 24. With respect to data analyses conducted by HHS-OIG to support its reports or medical reviews by consultants, the Government argues that “[c]ourts have routinely protected OIG's internal investigative material and working papers from disclosure in order to protect the integrity of its investigations, reports, and policy recommendations.” Opp'n to Compel 16. Finally, it specifically responds to Life Care's assertions regarding the document listing beneficiaries, asserting that this document also includes the “initial steps for the medical review process” and “is therefore part of the preliminary work papers which culminates in the final report.” Opp'n to Compel 19 n.10. In its Reply, Life Care generally argues that the Government has failed to establish that the documents in Table 3 reflect the “give-and-take of the consultative process” or are “an essential element of that process,” rather than “a peripheral item which just ‘beefs up’ a position with cumulative materials.” Reply to Compel 11 (citing Parke, Davis & Co., 623 F.2d at 6) (internal quotation marks omitted). It submits that the Government has not established that the information: (1) relates to any particular rulemaking process or decision; (2) is a communication by a subordinate to a superior or even whether it was communicated at all (because the log does not identify the communicating parties); or (3) contains any recommendations regarding agency policy. Reply to Compel 10. 3. The Special Master's Recommendations Regarding the Documents in Table 3 In its review of the documents in Table 3, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 3, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 3 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 3, pp. 54-106. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that 854 documents in Table 3 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the documents in Table 3 are a combination of data or data analyses regarding the rulemaking process, reports, studies, and/or medical reviews, as well as various drafts of such analyses and other related documents. The Special Master determined these documents are drafts based on the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. *27 ● Where these documents were prepared by or shared with an outside consultant, the Special Master determined that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on its consideration of the pleadings, additional information from the parties, and the documents themselves. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master finds that one document in Table 3 is covered by the deliberative process privilege, but does contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to this document as it reflects predecisional and deliberative communications by and among government agencies and/or outside counsel engaged by those agencies. The Special Master also finds that this document contains some purely factual information but that this factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions, and analysis. ● The document is a final draft of an internal briefing paper relating to CMS's SNF PPS Proposed Rule 1534-P. ● The Special Master has prepared redacted versions of this document accordingly. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that 56 documents in Table 3 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. A description of these documents and the reasoning behind the Special Master's conclusion follows: o Hard Copy Documents with no Discernable Relationship to Agency Deliberations. The Special Master determined that the Government has failed to meet its burden that seven particular hard-copy documents are protected by the deliberative process privilege. While the Government's Privilege Log indicates these “child” documents are attachments to certain other “parent” documents, neither the Privilege Log nor the “parent” or “child” documents contained information illuminating either a relationship between the documents or why these hard-copy “child” documents meet the requirements of the privilege.[26] o Communications Regarding an Error in a Data Point in a Final Rule. The Special Master finds that two emails and their four attachments discussing a minor administrative error in the final rule and the intent to correct it are not covered by the deliberative process privilege. Regardless of whether these email communications are inter– or intra-agency or deliberative, they are not predecisional. The agency's policy decision was made and published in the Final Rule referenced in these emails. The single data error being discussed by these employees is minor and administrative. It does not implicate any agency discretionary policy decisions. o Non-Deliberative Emails. The Special Master finds that Table 3 included 14 emails that are not covered by the deliberative process privilege. Regardless of whether these email communications are inter– or intra-agency or predecisional, they are not deliberative. They either represent non-substantive discussions or contain only factual information. *28 o Duplicates of Documents for Which the Government Withdrew Its Privilege Assertion: The Special Master determined that the Government has effectively withdrawn its claim of privilege over 29 documents that are identical to documents over which the Government already withdrew its initial claim of privilege. The Special Master determined that these documents are duplicates, based on a review of the MD5 Hash values provided by the Government in its production load files, and thus these documents are no longer privileged. E. Recommendations Regarding Documents Identified in Life Care's Table 4 1. Summary of Documents in Table 4 Table 4 contains 64 documents originally withheld by the Government from production to Life Care as protected by the deliberative process privilege.[27] However, the Government has withdrawn its assertion of the deliberative process privilege over six documents in Table 4. This resulted in a total of 58 documents for the Special Master's review. Life Care categorized the documents in Table 4 as “Documents Requesting Funding for SNF PPS Projects” based on the Government's description of these documents in its Third (First and Second Supplements), Seventh (First Supplement) and Eleventh Privilege Logs. Mot. to Compel 12. On behalf of the Government, Elizabeth Richter's Declaration described these documents as including: (1) drafts of an interagency memorandum discussing “preliminary analyses of the effects of recent changes to the SNF regulations on provider behavior and Medicare payments and request[ing] funding for a new study to further analyze the effects of these rule changes,” Richter Decl. ¶ 39; and, (2) funding requests “submitted to CMS management for other proposed SNF projects,” Richter Decl. ¶ 40. The Special Master has reviewed the documents in Table 4 and finds them to include funding proposals for various years that relate particularly to SNF PPS payment analyses. These documents generally take three forms: ● Multiple versions of a memorandum from W. Saunders, Deputy Director (CMS) to L. Wilson, Director (CMS) regarding the SNF PPS Refinement Evaluation Study; ● CMS Operating Plan Glossaries that include descriptions of funding requests, justifications, amounts, and descriptions of the negative results of failing to fund the proposed project(s); and, ● An excel file entitled “Medicare FY 2008 Operating Plan & FY 2009 Budget Request.” 2. The Parties Arguments Regarding the Documents in Table 4 With regard to Table 4, Life Care argues that “[i]t is clear from the information provided in Ms. Richter's Declaration that the documents listed in Table 4 ... to Life Care's Motion do not include any recommendations or opinions regarding changes in policy or in the interpretation of policy.” Reply to Compel 19. Instead, Life Care asserts that “the documents merely analyze the effect of then-existing policies and set forth an argument for additional funding for future projects.” Reply to Compel 19. *29 Life Care also argues that these documents, at the very least, contain severable factual information because they “simply set forth a request for funding that likely contains primarily, if not entirely, factual information that is not subject to the privilege” and that “[e]ven if these documents do contain information that is reflective of the consultative process and subject to the privilege, to the extent that any portion of the documents contain language regarding final policy decisions and/or factual information, those portions of the documents should be produced.” Mot. to Compel 13. On behalf of the Government, Elizabeth Richter's Declaration describes these funding requests and their deliberative nature: ● The drafts of the memorandum requesting funding for an SNF PPS study are predecisional and deliberative because they show “the DIPC group's preliminary analyses of the effects of recent changes to the SNF regulations on provider behavior and Medicare payments and request funding for a new study to further analyze the effects of these rule changes.” Richter Decl. ¶ 39. They also “explain[ ] why DIPC staff believed the proposed study is necessary to evaluate, how that evaluation could be used for purposes of deciding whether changes to future policies are needed, and DIPC staff's opinion as to the consequences of not funding the proposal.” Richter Decl. ¶ 39. She also asserts that: “The documents are drafts, and, thus, represent the preliminary thoughts of DIPC employees and also predate the official policy decision by CMS's Office of Financial Management regarding whether to fund the project proposed by Mr. Wilson.” Richter Decl. ¶ 39. ● “A final copy of th[is] memorandum [from W. Saunders, Deputy Director (CMS) to L. Wilson, Director (CMS) regarding the SNF PPS Refinement Evaluation Study], also contains deliberative recommendations and opinions by Mr. Wilson on proposed actions and predates any decision to fund the SNF project.” Richter Decl. ¶ 39. ● “[F]unding requests submitted by DIPC to CMS management for other proposed SNF projects .... similarly contain deliberative information concerning the effects of current policies and suggested potential future policy actions. Richter Decl. ¶ 40. Ms. Richter also asserts that they are predecisional because they “represent the preliminary thoughts of DIPC employees and predate the official policy decision regarding whether to fund the proposed project.” Richter Decl. ¶ 40. The Government also points to the Tenth Circuit decision in Casad v. HHS, 301 F.3d 1247 (10th Cir. 2002), to support its withholding of the documents in Table 4 stating that the court in that case “considered a similar demand for disclosure of HHS funding requests” and held that: [A] “summary statement [evaluating a funding request] is a predecisional communication in the [National Institutes of Health's] funding process .... The summary statement reflecting the ... thoughts and conclusions [of agency staff recommending funding]” is sent up the National Institutes of Health's chain for approval. Accordingly, [the court] found that the funding memorandum was protected by the deliberative process privilege. The court further determined that the decision to approve funding does not mean the agency “expressly adopted” the reasoning in the memo, and therefore, the memo remains privileged even after the request is approved. Opp'n to Compel 31–32 (quoting Casad, 301 F.3d at 1252–54) (internal citations omitted). 3. The Special Master's Recommendations Regarding the Documents in Table 4 In its review of the documents in Table 4, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 4, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 4 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 4, pp. 106-111. The Special Master recommends that these findings be adopted by the Court. *30 a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that 57 documents in Table 4 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the majority of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. The Special Master also finds that these documents are not severable. As a threshold matter, these documents contain very little information that is factual, and instead primarily contain deliberative language such as recommendations, opinion and argument. ● The Special Master finds that the remaining documents are also protected for the following reasons: o A memorandum from Laurence Wilson to William Saunders, Deputy Director, CMS Office of Research, Development, requesting funding for a SNF PPS Refinement Evaluation Study contains inter-agency discussions regarding pending requests for funding, including arguments and analysis regarding the need for such funding. This memorandum does not contain factual information. o CMS budget documents that contain budget analyses, justifications for budget requests, and explanations regarding the negative effects of not funding these studies. At least one of these documents also appears to be a draft, because it is incomplete in several areas. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master does not find that any documents in Table 4 are both protected by the deliberative process privilege and contain severable factual information. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that one document in Table 4 is not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to this document. The document, entitled FY 2008/2009 Operating Plan/Budget Request Spreadsheet Key, contains only factual information regarding the definitions of terms used in a budget request. F. Recommendations Regarding Documents Identified in Life Care's Table 5 1. Summary of Documents in Table 5 Table 5 contains 260 documents originally withheld by the Government from production to Life Care as protected by the deliberative process privilege.[28] The Government withdrew its assertion of the deliberative process privilege as relates to 59 documents in Table 5. After taking into account the “Container Files” in Table 5, this resulted in 193 documents for the Special Master's review. *31 Life Care categorized the documents in Table 5 as “Briefing Papers” based on the Government's description of these documents in its Third (First and Second Supplements), Seventh (First Supplement), Eleventh and Twelfth Privilege Logs. See Mot to Compel 13. On behalf of the Government, Elizabeth Richter's Declaration described these documents as: “briefing papers...for briefings to the CMS Deputy Administrator on proposed changes to the SNF PPS system”; and, “briefing materials for SNF payment review briefings with CMS management” including analyses of the effectiveness of current policies and recommended changes. Richter Decl. ¶¶ 15, 17, 18. The Special Master has reviewed the documents in Table 5 and finds them to include a variety of briefing materials, including internal CMS briefing materials, draft briefing materials, talking points, draft reports to Congress, and documents related to ongoing “monitoring activities” undertaken by CMS as required under a final rule. 2. The Parties Arguments Regarding the Documents in Table 5 As to briefing papers related to proposed rules and rule changes, Life Care argues “[t]he descriptions provided for the briefing papers ... indicate that the information contained within the briefing papers was based on final positions and/or decisions regarding the topics being briefed.” Mot. to Compel 13. “As the Government has described [them] ... it does not appear that the documents are deliberative in nature, i.e., they do not evidence the ‘give-and-take of the consultative process.’ ” Mot. to Compel 14 (quoting Coastal States, 617 F.2d at 866). Instead, Life Care submits that “the descriptions suggest that the information and/or positions being set forth in the briefing papers are final decisions and, thus, not subject to the deliberative process privilege.” Mot. to Compel 14. Regarding briefing papers related to final rules, Life Care argues “[a]s these briefing papers discussed rules that were already finalized and/or in place, there is no support for the Government's claim that these documents are deliberative in nature.” Mot. to Compel 14. Finally, Life Care asserts that the Government has failed “to establish that each briefing document is deliberative in nature.” Reply to Compel 13. It submits that: “The fact that a document contains advice or recommendations from a subordinate is not enough. The district court must know how each document fits into the deliberative process, and whether it is an essential element of that process or possibly a peripheral item which just ‘beefs up’ a position with cumulative materials.” Reply to Compel 13 (quoting Califano, 623 F.2d at 6). As to these Table 5 documents, the Government's argument in response is limited, stating only that “Life Care seeks to compel the production of ‘final’ briefing papers, but cites no authority for doing so” and that “Life Care says it is requesting only ‘final’ briefing papers ... but—final or not—those briefing papers contain candid advice and recommendations that represent the opinion of the staff and not of the agency.” Opp'n to Compel 25–26 (citations omitted). On behalf of the Government, Ms. Richter's Declaration describes the deliberative nature of these briefing documents: These types of documents are used to provide options and recommendations during the hierarchical clearance process, which may be the basis for deciding on a given policy. Ultimately, the decision to approve a given policy or rule rests with the CMS Administrator and with the Secretary of Health and Human Services and is approved by the OMB. These papers, therefore, provide DIPC's [Division of Post Acute Care] frank and unvarnished guidance and recommendations to agency management. As such, the briefing papers would reveal the advice and deliberations of the agency, including policy options that the agency rejected. *32 Richter Decl. ¶ 15. She also identifies several specific documents: ● “[A] briefing paper prepared by DIPC for briefings to the CMS Deputy Administrator on proposed changes to the SNF PPS system in the FY 2009 and 2010 rules,” which “discusses the proposed changes and the implementation plan for the changes.” Richter Decl. ¶ 17. ● “[A] SNF Case-Mix Creep Refinements Analysis Plan, in which DIPC analyzes current SNF policies and discusses future analyses to be undertaken by the group” and “discusses future potential policy changes to be considered based on the results of the planned analyses.” Richter Decl. ¶ 17. She then asserts that these documents are predecisional and deliberative because: ● “[T]hey contain thoughts and opinions of DIPC employees on the effects of current policies and potential future analyses and proposed policy changes.” Richter Decl. ¶ 17. ● “[T]he steps outlined in this analysis plan represent merely potential strategies for future analyses, which may themselves serve as the basis for future policy decisions.” Richter Decl. ¶ 17. ● “CMS has not implemented or even publicly addressed any forthcoming case-mix creep adjustment or any other type of policy that may clearly be tied to the analyses identified in the aforementioned document, this briefing document is predecisional and falls within the bounds of the deliberative process privilege.” Richter Decl. ¶ 17. She also describes certain “briefing materials for SNF payment review briefings with CMS management”: Each year, a briefing is held for CMS management, including the CMS Deputy Administrator, during which DIPC briefs management on current significant issues related to the SNF payment system and proposed changes to the rules for the upcoming year .... These briefing papers include an analysis of the effectiveness of current policies and discuss the various regulatory changes that the group is recommending to be proposed for the upcoming year and the reasons for those recommended changes. These documents are deliberative in that they are part of the back and forth that transpires at CMS as part of the rulemaking process .... They are predecisional in that they reflect staff recommendations for analysis of potential future rule and policy changes. Richter Decl. ¶ 18. 3. The Special Master's Recommendations Regarding the Documents in Table 5 In its review of the documents in Table 5, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 5, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 5 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 5, pp. 111-127. The Special Master recommends that these findings be adopted by the Court. *33 a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds 65 documents in Table 5 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● These documents include different types of internal and external briefing papers. The Special Master determined that many of these documents are drafts based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The Special Master finds that the internal briefing papers were prepared for internal use to accompany, explain, and/or support proposals being presented by subordinates to superiors regarding agency policies or potential agency policies. These documents generally present an issue, factual background on the issue and, as necessary, analysis, multiple options, and recommendations. Based on the cover emails, privilege log entries, declarations, pleadings, and internet research to determine the publication date of proposed and final rules, the Special Master determined that the policy recommendations in these documents had not been accepted by the superior or adopted by the agency at the time of writing. The Special Master finds that these documents are pre-decisional and deliberative. ● The Special Master finds that the external briefing papers were prepared to accompany, explain, and/or support CMS's published rulemaking activities. Based on the cover emails, privilege log entries, declarations, pleadings, and internet research to determine the publication date of proposed and final rules, the Special Master determined that the policy recommendations in these documents had not been accepted by the superior or adopted by the agency at the time of writing. The Special Master finds that these documents are pre-decisional and deliberative. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master finds that 92 documents in Table 5 are covered by the deliberative process privilege but nonetheless contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master also finds that these documents contain some purely factual information but that this factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions, and analysis. *34 ● The majority of these documents are final drafts of internal briefing papers relating to different iterations of CMS's SNF PPS rules. Others are final drafts of external briefing papers regarding IPF PPS rules and other CMS rule-making activities. The remainder are reports documenting the Government's monitoring of the impact of its rulemaking activity, that includes certain analysis and deliberative material from employees to their superiors regarding potential future rulemaking. The Special Master determined that these documents contain background information that is purely factual and does not reveal the nature of the deliberations themselves. ● The Special Master determined that a few of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The Special Master has prepared redacted versions of these documents accordingly. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds 36 documents in Table 5 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. A description of these documents follows: o Final External Briefing Papers: Briefing papers which are final and have been or will be shared with a non-inter or –intra agency entity. o Cover Emails: Non-substantive emails that do not contain any substantive or deliberative information. o Correspondence from Third Parties: Correspondence from third parties, particularly members of Congress, which are not inter– or intra-agency documents, nor do they relate to agency consultants. o Meeting Agendas: Meeting agendas which identify topics for discussion, but do not expose deliberative discussions or an exchange of ideas regarding these topics. o Duplicates of Documents for Which the Government Withdrew Privilege: The Special Master determined that the Government has effectively withdrawn its claim of privilege over two documents that are identical to documents over which the Government already withdrew its initial claim of privilege. The Special Master determined that these documents are duplicates, based on a review of the MD5 Hash values provided by the Government in its production load files, and thus the Government's withdrawal of privilege is applicable to those identical documents. G. Recommendations Regarding Documents Identified in Life Care's Table 6 1. Summary of Documents in Table 6 Table 6 contains 48 documents originally withheld by the Government from production to Life Care as protected by the deliberative process privilege.[29] The Government withdrew its assertion of the deliberative process privilege as relates to two documents in Table 6 resulting in 46 documents for the Special Master's review. Life Care categorized the documents in Table 6 as “draft press releases” based on the Government's description of these documents in its Third, Seventh, Eleventh, and Twelfth Privilege Logs. Mot. to Compel 14. On behalf of the Government, Elizabeth Richter's Declaration describes these documents as including, “[d]rafts of press releases and proposed questions and answers relating to the rules.” Richter Decl. ¶ 12(d). According to Ms. Richter: “The draft press releases contain DIPC's suggestions for how to describe the announced policies, [sic] and the impact of those policies. Press releases may also be drafted for different variations of proposed rules, and the releases for variations that are rejected are never issued.” Richter Decl. ¶ 10. In addition, Ms. Richter explains that the “draft Question and Answers” are “internal guidance” drafted by DIPC employees “to assist CMS management in responding to questions about the rules from the press or Congress” and to “provide guidance on the application of the rules or CMS policies under certain scenarios.” Richter Decl. ¶ 11. She also explains that these “are prepared before the proposed and final rules have been finalized and issued publicly” and “go through a series of iterations before they become final.” Richter Decl. ¶ 11. *35 The Special Master has reviewed the documents in Table 6 and finds these documents generally fall into one of the following categories: ● Drafts of Press Releases prepared in anticipation of the release of proposed and/or final SNF rule. These draft press releases were created, circulated intra-agency, and edited prior to the release of the relevant Final Rule, and occasionally prior to the agency's internal announcement as to which version would be used. ● Drafts of Question and Answer Documents prepared prior to the release of a final rule to be used as internal guidance. ● Drafts of Action Memoranda Supporting Proposed Rules prepared prior to the release of the SNF rule. The draft memoranda contain recommendations and deliberations and have not been approved by the employees' superiors. ● Drafts of Final Rule CMS-1534-F. ● Emails containing both substantive and non-substantive discussion. ● Image files containing the CMS logo and a blank document. 2. The Parties Arguments Regarding the Documents in Table 6 In its Motion to Compel, Life Care argues that “draft press releases likely contain only ‘factual information’ that would be disclosed to the public that is not subject to the deliberative process privilege.” Mot. to Compel 14–15. The Government responds in its Opposition that draft press releases reveal agency deliberations about policy. “Drafts and emails within the agency regarding how to present and describe policies show the give and take of the consultative process.... Divulging the drafts would expose the deliberations among agency employees and their editorial judgments, and thereby harm the deliberative process.” Opp'n to Compel 27–28. Further, the Government contends that draft press releases “reflect CMS staffs' internal deliberations and the exercise of [ ] their [ ] editorial judgment over how [to] explain the new regulations or policies, its justification for the policy changes, and the anticipated effect of those changes.” Opp'n to Compel 28. It also asserts that they contain “staff's proposed explanation of the rule, its rationale and anticipated impact, and a quote from a senior HHS official, who may not yet have actually approved or even seen the words being attributed to her” and “reveal[ ] the redline edits proposed by other employees.” Opp'n to Compel 28. The Government explains that press releases are customarily drafted for different versions of the rule and may never be issued if a different rule is adopted. Opp'n to Compel 28. Finally, the Government argues that the “Q&As” drafted by DIPC staff regarding proposed rules, including “different versions for alternative rules under consideration”: (1) “provide internal guidance intended to assist CMS management in responding to questions about the rules from the press or Congress”; (2) “present specific questions about the proposed rules along with the staff's suggested answer”; and, (3) “reflect the agency's deliberations as to how the proposed rules would apply and interpretive guidance regarding the proposed rules.” Opp'n to Compel 28–29 (internal quotation marks and citation omitted). Life Care replies that the Government's blanket characterization of the draft press releases as predecisional and deliberative is insufficient. Life Care contends that the Government should be required to show how each individual document “merely ‘fits into the deliberative process, and whether it is an essential element of that process' ” or just cumulative. Reply to Compel 17–18 (quoting Califano, 623 F.2d at 6). Furthermore, Life Care maintains that the Government has failed to acknowledge that “draft documents may lose their predecisional status if the recommendations or positions stated within the draft documents are ‘adopted, formally or informally, as the agency position on an issue or [are] used by the agency in its dealings with the public.’ ” Reply to Compel 18 (citation not provided in original). Life Care thus concludes that since the Government has failed to consider this possibility, a “review of these documents is necessary to determine their status.” Reply to Compel 18. 3. The Special Master's Recommendations Regarding the Documents in Table 6 *36 In its review of the documents in Table 6, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 6, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 6 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 6, pp. 127-128. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that 40 documents in Table 6 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the majority of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. The remaining documents consist of emails containing internal deliberations, recommendations, or predecisional policy considerations. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master does not find that any documents in Table 6 are both protected by the deliberative process privilege and contain severable factual information. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that six documents in Table 6 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. A description of these documents and the reasoning behind the Special Master's conclusions is as follows: o One email does not contain deliberative content and is therefore not covered by the deliberative process privilege; and, o Three image files, attached to CMS020-05549, are not covered by the privilege because two are simply the CMS logo, and the third image is blank altogether. H. Recommendations Regarding Documents Identified in Life Care's Table 7 1. Summary of Documents in Table 7 Table 7 contains 123 documents originally withheld from production by the Government as protected by the deliberative process privilege.[30] The Government withdrew its assertion of the deliberative process privilege as it relates to 35 documents in Table 7. After taking into account any “Container Files” and/or “Unopenable Spreadsheets,” this resulted in a total of 74 documents for the Special Master's review. *37 Based on the Government's description of these documents in the Government's Third, Seventh, Eleventh, and Twelfth Privilege Logs, Life Care describes these documents as those that “reflect final agency decisions regarding final rules and/or established policies.” Mot. to Compel 15. The Government's Response in Opposition groups the documents in Table 7 into the following categories: (1) draft rules, communications regarding draft rules, and preliminary analysis prepared in drafting proposed rules, (2) draft press releases, and, (3) communications regarding final rules. Opp'n to Compel 23, 27, 29. The Special Master's review reveals that this Table encompasses a variety of documents, mainly falling into the following categories: ● memoranda with internal talking points that relate to policy changes being made or analyzed; ● memoranda comprising talking points for discussions with third parties, such as talking points for calls with industry, talking points for a speech to Creative Solutions in Healthcare, and drafts of talking points to American Health Care Association; ● multiple versions of drafts of Final Rules that contain redlines and/or comments; ● briefing documents or memoranda that Division of Institutional Post Acute Care (DIPC) staff prepared for the purpose of providing advice to CMS management regarding the rules or policies at issue; ● drafts of press releases regarding revised Skilled Nursing Facility rules and policy decisions that were released prior the agency's decision regarding which version of the rule or policy decision to adopt; and, ● spreadsheets with Preliminary Data Analyses that are connected to the development and support of upcoming SNF rules, including strategic analysis of data used to make decisions regarding such upcoming rules. 2. The Parties Arguments Regarding the Documents in Table 7 Life Care contends in its Motion to Compel that “[t]he documents [in Table 7] do not reflect the consultative process or the weighing of pros and cons as to the adoption of one agency viewpoint or another. Instead, they reflect final decisions or positions of the agency.” Mot. to Compel 15 (citing Coastal States, 617 F.2d at 866). Using one of the Government's privilege log entries, Life Care points out that the description “suggests that the memorandum pertained to a SNF rule that was already published and an established position regarding a question about that rule.” Mot. to Compel 15. In response, the Government makes the following arguments: ● Draft rules, communications regarding draft rules, and preliminary analysis prepared in drafting proposed rules: The Government argues that “[d]ocuments within this category contain DIPC's drafts of the proposed rules, their discussions about the drafts, and their opinions, recommendations, and analyses regarding proposed rules.” Opp'n to Compel 23 (citation omitted). According to the Government, “[t]his type of information is at the very heart of the privilege because its exposure would reveal DIPC's internal deliberations, opinions, and analysis, the agency's consideration of different proposals, and employees' candid advice offered as part of the rulemaking process.” Opp'n to Compel 23–24 (internal citations omitted). ● Draft Press Releases: Elizabeth Richter, on behalf of the Government, describes these documents in her declaration as “core deliberative process materials.” Richter Decl. ¶ 13. She explains that they are predecisional because they precede issuance of proposed and final rules and deliberative because they embody thoughts of CMS personnel and are an integral part of the give-and-take deliberative process. Richter Decl. ¶ 13. She further states that “[a]s part of [its] rulemaking process, DIPC employees and other HHS personnel ... draft press releases” that “contain DIPC's suggestions for how to describe the announced policies, and the impact of those policies.” Richter Decl. ¶10. She also asserts that these “[p]ress releases may also be drafted for different variations of proposed rules, and the releases for variations that are rejected are never issued[.]” Richter Decl. ¶ 10. *38 ● Communications regarding final rules: The Government states that the documents “referencing ‘final rules' involve deliberations regarding rules that have not yet been published.” Opp'n to Compel 29. The Government maintains that those references do not mean that the final rule was published prior to the communication, but that agency employees refer “to the ‘final rule’ to distinguish it from the rule that is initially proposed, the ‘proposed rule.’ ” Opp'n to Compel 29–30. The Government explains that documents in Table 7 include agency discussion as its employees drafted the final rule; thus, they “post-date the proposed rule but predate the final rule.” Opp'n to Compel 30. The Government also points out that “Table 7 [ ] includes deliberative documents that are wholly unrelated to the description Life Care provides for this table.” Opp'n to Compel 30. “For example,” it asserts, “this table includes one DIPC employee's draft suggestions for changes to a CMS manual ... and another document contains DIPC's initial evaluation of proposed legislation.” Opp'n to Compel 30 (citing (CMS029-030710 and CMS025-034848, respectively)). It argues that: “These documents reflect the personal opinions of the writers, who provide confidential advice regarding proposed changes to CMS policy.” Opp'n to Compel 30. 3. The Special Master's Recommendations Regarding the Documents in Table 7 In its review of the documents in Table 7, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 7, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 7 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 7, pp. 128-134. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that 51 documents in Table 7 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that many of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The documents in Table 7 also contain preliminary data analyses supporting draft reports and studies used to support policy changes. ● The remaining documents are emails with substantive internal deliberations, comments and communications between agencies regarding policy changes, and results of data analyses to be used in making and/or suggesting policy changes. ● The Special Master finds that these documents do contain factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information *39 ● The Special Master finds that eight documents in Table 7 are covered by the deliberative process privilege but nonetheless contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master also finds that these documents contain some purely factual information but that this factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions, and analysis. ● These documents are briefing papers that contain purely factual information or non-deliberative discussions in one part of the document and protected discussions in another section. The factual, non-deliberative discussions can be reasonably severed from the deliberative discussion contained therein. ● The Special Master determined that the majority of the documents in Table 7 are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The Special Master has prepared redacted versions of these documents accordingly. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that 15 documents in Table 7 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. o These documents include external briefing papers in final form, cover emails without substantive discussion, final talking points to third parties, and a copy of a PowerPoint reflecting a post-decisional review of new policies. Such briefing papers represent final determinations of agency policy. They are therefore not deliberative or pre-decisional and are therefore not protected by the deliberative process privilege. I. Recommendations Regarding Documents Identified in Life Care's Table 8 1. Summary of Documents in Table 8 Table 8 contains 574 documents originally withheld from production by the Government as protected by the deliberative process privilege.[31] The Government withdrew its assertion of the deliberative process privilege as relates to 37 documents in Table 8. After taking into account any “Container Files” and/or “Unopenable Spreadsheets,” this resulted in a total of 505 documents for the Special Master's review. Based on the Government's description of these documents in the Government's Third, Sixth (Amended), Eleventh, and Twelfth Privilege Logs, Life Care describes these documents as those “prepared by non-agency consultants and/or contractors.” Mot. to Compel 15. The Government's Response in Opposition describes the Table 8 documents as: (1) draft reports prepared by CMS contractors; (2) documents related to OIG's medical review; and, (3) briefing papers. Opp'n to Compel 13, 17, 25. Ms. Richter's Declaration provided additional background on the draft reports prepared by CMS contractors, which she states “relate to work undertaken by CMS or a CMS contractor as part of a study commissioned by CMS on SNF issues.” Richter Decl. ¶ 31. She explains that “CMS often contracts with various third party contractors to assist in conducting” studies, “to gather information to inform future policymaking,” and “to evaluate the effectiveness of current policies and assess whether it should modify those policies, and, if so, the types of changes it should make.” Richter Decl. ¶ 31. *40 The Special Master's review of these documents confirms both Life Care's and the Government's descriptions. The documents fall within the following categories: ● Drafts of reports and analyses from CMS Contractors and/or Consultants. o DAVE Reports & Analysis: These include documents associated with the DAVE Project, including draft white papers, draft monitoring reports, and draft reports that contain analyses performed by the DAVE project to be considered for purposes of future policy revisions. o Acumen: These are spreadsheets and charts containing analyses of the Resource Utilization Group (“RUG”) monitoring project as well as draft summaries and report outlines of the SNF Monitoring Project. o STRIVE Final Report: A number of drafts of “STRIVE Final Report II” with a significant number of attachments. The reports are heavily redlined with comments. o PRG Schultz: Two documents from CMS contractor PRG Schultz that are draft policies to be used as part of the Recovery Audit Contractor (RAC) Project that had not yet been approved or adopted by CMS. ● Communications and analyses from CMS Contractors. o Stepwise Systems, Inc.: A significant number of substantive emails from and analyses (including spreadsheets, charts, and even handwritten notes on emails) prepared by David Malitz and Bob Godbout of Stepwise Systems, Inc., a CMS Contractor hired to perform work on SNF payment system reform and to serve as STRIVE survey design consultants including a discussion about the STRIVE RUG-53 Case Mix Analysis, RUG 44, RUG 53, RUG Utilization 2006 Payment Summary, etc. o Urban Institute: Documents from the Urban Institute, a CMS consultant hired to analyze the initial SNF refinements that helped develop the RUG 53 payment system, that contain comments regarding draft reports. (The Government otherwise withdrew its privilege assertion related to another Urban Institute report, which is also available at http://www.urban.org/sites/default/files/alfresco/publication-pdfs/411526Options-for-Improving-Medicare-Payment-for-Skilled-Nursing-Facilities.PDF). ● OEI Documents: Documents in Table 8 include analyses of data used to draft the report OEI-02-09-00200, “Inappropriate Payments to Skilled Nursing Facilities Cost Medicare More Than a Billion Dollars in 2009 (November 2012). 2. The Parties Arguments Regarding the Documents in Table 8 In its Motion to Compel, Life Care argues that the descriptions provided for the draft reports prepared by non-agency consultants and/or contractors “do not suggest that they were ‘prepared in order to assist the Government in making any particular decision, and they do not suggest that the documents were actually used by the government in any decisionmaking process.’ ” Mot. to Compel 16. In support of this argument, Life Care cites Hoover v. United States Department of the Interior, 611 F.2d 1132, 1143 (5th Cir. 1980), for the proposition that a report is protected only where it is “specifically prepared in order to assist the agency in making a decision.” Mot. to Compel 16. In addressing this Table and responding to Life Care's assertions, the Government asserts that the work of consultants contained in draft reports is covered by the deliberative process privilege and that “even Life Care concedes that courts have included contractors' work product within the ambit of the deliberative process privilege.” Opp'n to Compel 13 (citing Mot. to Compel 16). In support, the Government cites Brush Wellman, Inc. v. Dep't of Labor, 500 F. Supp. 519, 522 (N.D. Ohio 1980), which it asserts upheld the Labor Department's claim of privilege over draft reports prepared by outside consultants, agreeing with a declaration submitted to the Department explaining that “the privilege was necessary to ensure that agency advisors will be able to freely express their opinions ... without fear of publicity.” Opp'n to Compel 13–14. The Government states that the documents at issue contain “draft reports, redline markups, initial data analysis, preliminary recommendations, staff comments and discussions regarding proposed methodology, and quarterly reports that summarize tentative analysis.” Opp'n to Compel 14 (internal citations omitted). It submits that the documents “contain the comments, discussions, and recommendations among agency personnel, and between agency personnel and the consultants, regarding the draft reports, report design, methodology, and potential inferences to be drawn from the data.” Opp'n to Compel 14 (internal citations omitted). Therefore, the Government argues, producing these documents would chill “future deliberations and collaborations between the agency and its consultants” and make it more difficult “for CMS to retain talented consultants.” Opp'n to Compel 15. *41 Ms. Richter specifically discusses the STRIVE Project, DAVE Project, and Acumen: ● Staff Time and Resource Intensity Verification (STRIVE) Project: According to Ms. Richter's Declaration, this is a national nursing home staff time measurement study, that CMS contracted with Iowa Foundation for Medical Care (IFMC) to conduct. Data collected was “used to establish payment systems for Medicare skilled nursing facilities.” Richter Decl. ¶ 32. She explains that STRIVE had two phases that culminated in SNF PPS refinements and the establishment of the RUG-IV payment model. Richter Decl. ¶ 32. Ms. Richter states that the documents Life Care seeks are drafts of SNF Phase II report and the results of preliminary data tests. Richter Decl. ¶ 32. Ms. Richter argues the documents are “predecisional because they predate the conclusion of the study and issuance of the final STRIVE report” and “deliberative because they represent the STRIVE team's preliminary thoughts and analyses on potential changes to be made to the SNF payment system.” Richter Decl. ¶ 35. She further explains that “[t]he STRIVE report went through numerous iterations and was the subject of many deliberative discussions internally amongst CMS and between CMS and the contractor employees working on the report before finalization.” Richter Decl. ¶ 35. ● Data Assessment Verification (DAVE) program: Here, Ms. Richter states that “a CMS contractor, in consultation with DIPC personnel, analyzed and assessed the accuracy of the information providers submitted on their MDS forms, which are forms used to determine Medicare payments in SNFs.” Richter Decl. ¶ 36. She continues: “As part of the DAVE program, the contractor also analyzed various trends over time relating to RUGs distribution,” the purpose of which “was to provide information to enable CMS to determine whether future policy actions or changes are warranted.” Richter Decl. ¶ 36. Ms. Richter argues that the documents Life Care is requesting associated with the DAVE project are “predecisional,” “deliberative,” and “part of the give and take deliberative process that occurs when CMS studies a policy issue and makes policy changes.” Richter Decl. ¶ 37. According to Ms. Richter, “CMS relies heavily on contractors to analyze issues affecting SNF policy,” and then “vet [s]” and “deliberate[s]” on their analyses “to determine whether policies need to be modified in light of changed circumstances or provider behavior.” Richter Decl. ¶ 37. She also asserts that “[t]he preliminary analyses by CMS contractors do not reflect the opinions of the agency and .... are one step in the deliberative process through which regulations and policies are updated.” Richter Decl. ¶ 37. Finally, she submits that “[t]o the extent that work completed by the DAVE contractor was part of finalized policy decisions regarding SNF payment or coverage, this information was made public as part of our standard rulemaking and policy development processes.” Richter Decl. ¶ 37. ● Acumen Study: According to Ms. Richter, “CMS contracted with Acumen, LLC (Acumen) to conduct an analysis of the effect of the changes in fiscal year 2011 and 2012 to the SNF PPS system.” Richter Decl. ¶ 38. She explains that, “Acumen analyzed various SNF metrics as requested by CMS, and the results of Acumen's analyses .... along with work performed internally by CMS staff” were used “to support CMS's decision not to take any further action during the FY 2013 and FY 2014 rulemaking cycle.” Richter Decl. ¶ 38. Further, according to Ms. Richter, other analyses unrelated to FY2011 and FY2012 policy changes “may serve as the basis for some future recommended changes” and releasing them “to the public would be detrimental in that it would provide the public with insight into DIPC's preliminary thinking about what potential policy changes should be considered and analyzed for the broader SNF payment reform project.” Richter Decl. ¶ 38. *42 Briefing Papers. Ms. Richter addresses briefing documents both generally and more specifically in the context of the “SNF Case-Mix Creep Refinements Analysis Plan, in which DIPC analyzes current SNF policies and discusses future analyses to be undertaken by the group to assess current policies” and “future potential policy changes to be considered based on the results of the planned analysis.” Richter Decl. ¶ 17. Ms. Richter says these documents are predecisional and deliberative because they contain opinions of DIPC employees on effects of current policies, potential future analyses, and proposed policy changes. Richter Decl. ¶ 17. “As CMS has not even publicly addressed any forthcoming case-mix creep adjustment or any other type of policy that may clearly be tied to the analyses identified in the aforementioned document, this briefing paper is predecisional and falls within the bounds of the deliberative process privilege.” Richter Decl. ¶ 17. Documents Related to OEI's Medical Review. According to the Government's Opposition, OIG engaged clinical consultants to conduct a medical review as part of the evaluations for two of the SNF reports. Consultants were tasked with evaluating whether the medical records supported the services billed and whether care plans met Medicare requirements. This preliminary step culminated in the final public report containing the Inspector General's methodology, analyses, findings, conclusions, and policy recommendations. Opp'n to Compel 17–18. In its Reply, Life Care argues that the Government has failed to establish the proper foundation to conclude that the documents prepared by outside consultants are protected by the deliberative process privilege because it has failed to establish that the consultant is only “ ‘representing the interests of the agency that hired it’ ” and functioning “ ‘just as an employee would be expected to do.’ ” Reply to Compel 6–7 (quoting Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 10 (2001)). Life Care also claims the Government's declarations do not establish that these were outside consultants serving only the interests of the agency or acting as employees and should not be protected by deliberative process privilege. Reply to Compel 7. 3. The Special Master's Recommendations Regarding the Documents in Table 8 In its review of the documents in Table 8, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 8, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 8 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 8, pp. 134-153. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds 500 documents in Table 8 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the many of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. *43 ● A number of other documents are preliminary data analyses supporting draft reports and studies used to support policy changes. ● The remaining documents are emails with substantive internal deliberations, final drafts of reports from CMS contractors strictly for internal use, and results of data analyses to be used in making and/or suggesting policy changes. ● Where these documents were prepared by or shared with an outside consultant, the Special Master determined that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on its consideration of the pleadings, additional information from the parties, and the documents themselves. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master does not find any documents in Table 8 that are both protected by the deliberative process privilege and contain severable factual information. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that five documents in Table 8 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. A description of these documents and the reasoning behind the Special Master's conclusions are as follows: o Emails without Deliberation or Substantive Discussions: The Special Master finds that four of these emails are not predecisional and/or do not contain deliberations regarding policy decisions. They are primarily cover emails that provided non-deliberative information regarding attached documents. o GIF or Image Files: One GIF file in Table 8 that was an image of a logo, that the Special Master finds is clearly not protected by the deliberative process privilege. J. Recommendations Regarding Documents Identified in Life Care's Table 9 1. Summary of Documents in Table 9 Table 9 contains ten documents originally withheld from production by the Government as protected by the deliberative process privilege.[32] The Government did not withdraw its assertion of the deliberative process privilege on any of these documents which resulted in ten documents for the Special Master's review. *44 Based on the Government's description of these documents in the Government's Amended Sixth Privilege Logs, Life Care identifies these documents as “drafts of design plans.” Mot. to Compel 17. The Government describes these documents as “drafts of the design plans for the various reports” or “typed notes and comments by OEI staff members about these methodologies.” Nudelman Decl. ¶¶ 26, 39(a). Ms. Nudelman explains that they relate to different OEI reports: “1) OEI-02-09-00200 – Inappropriate Payments to Skilled Nursing Facilities Cost Medicare More Than a Billion Dollars in 2009 (November 2012); 2) OEI-02-09-00201 – Skilled Nursing Facilities Often Fail to Meet Care Planning and Discharge Planning Requirements (February 2013); and 3) OEI-02-09-00202 – Questionable Billing by Skilled Nursing Facilities (December 2010).” Nudelman Decl. ¶ 8. The Special Master's review reveals that these documents include four “design plans,” three of which are identified in the Government's log as “drafts” and one that is identified as “final,” a partially redacted copy of each of those four documents, and two copies of a document of analysts' notes regarding the methodology to be applied for the OEI reports. 2. The Parties Arguments Regarding the Documents in Table 9 In its Motion to Compel, Life Care argues that “ ‘preliminary thoughts and ideas about the design of [an] evaluation’ ” do not relate to an “ ‘agency position’ ” and they do not reflect “ ‘weighing the pros and cons of agency adoption of one viewpoint or another.’ ” Mot. to Compel 17 (quoting Coastal States, 617 F.2d at 866). Life Care also asserts that these documents reflect a “methodology that was already applied to obtain preliminary error estimates,” rendering them not predecisional or deliberative. Mot. to Compel 17. The Government responds that “OEI staff created the draft design plans and survey instruments specifically to conduct the evaluations that underlie the final reports, and these documents would reveal the preliminary methodologies and mental processes of the evaluation team.” Opp'n to Compel 18. Ms. Nudelman also explains that draft design plans “function as a starting point when defining the scope of work, selecting the inspection methodology, determining the type and amount of evidence to be gathered, and choosing the tests and procedures.” Nudelman Decl. ¶ 26. She also asserts that they “reflect proposed edits and changes made by OEI personnel .... [and] background information, a proposed methodology, and the expected analysis plan to be followed.” Nudelman Decl. ¶ 26. She describes these drafts as “initial proposals which often evolve during the course of the evaluation” and are therefore “predecisional and deliberative.” Nudelman Decl. ¶ 26. She also notes that “[t]he final design of the study and the final methodology ... are described in detail in the final published reports.” Nudelman Decl. ¶ 26. 3. The Special Master's Recommendations Regarding the Documents in Table 9 In its review of the documents in Table 9, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 9, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 9 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 9, p. 153. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that two documents in Table 9 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. *45 ● The Special Master finds that these two documents are typed notes by an analyst documenting the deliberations that had occurred at a certain time in the agency's process for determining various numbers for an SNF report. ● The Special Master finds that these documents do not contain purely factual information. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master finds that four documents in Table 9 are covered by the deliberative process privilege but nonetheless contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master also finds that these documents contain some purely factual information but that this factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions, and analysis. ● Where these documents were prepared by or shared with an outside consultant, the Special Master determined that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on the pleadings, additional information from the parties, and the documents themselves. ● The Special Master determined that these four documents are in draft form based on the Government's privilege log description. ● The Special Master has prepared redacted versions of these documents accordingly. The Special Master's recommended redactions are not identical to the partially redacted versions of these documents, discussed immediately below, that the Government provided to the Special Master. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that four documents in Table 9 are not covered by the deliberative process privilege. These are the documents provided in partially redacted format and Bates numbered with “_Redacted.” The Special Master finds that all of the unredacted information in these four documents is purely factual and not privileged. K. Recommendations Regarding Documents Identified in Life Care's Table 10 1. Summary of Documents in Table 10 Table 10 contains ten documents originally withheld from production by the Government as protected by the deliberative process privilege, all identified on the Government's privilege logs. The Government did not withdraw its assertion of the deliberative process privilege on any of these documents which resulted in ten documents for the Special Master's review. Based on the Government's description of these documents in the Government's Amended Sixth Privilege Logs, Life Care identified these documents as “draft survey instruments.” Mot. to Compel 21. The Government further described these documents as relating to the “evaluation process for two of the reports at issue, OEI-02-09-00200 and OEI-02-09-00201,” which “involved medical reviews of patient records.” Nudelman Decl. ¶ 28. “The survey instruments are the data collection tools which, OEI, in collaboration with FMAS, created specifically for conducting the analysis underlying the OEI-02-09-00200 and OEI-02-09-00201 reports.” Nudelman Decl. ¶ 31. The Government's privilege log identifies all ten of these documents as drafts. *46 The Special Master's review of these “survey instruments” confirms these documents are instruments to be used by the medical reviewers in collecting data and conducting analysis. The ten documents are various versions of the medical review questionnaire. The Special Master's review also showed that the Table includes two copies each of five documents. Contrary to the Government's log, all of the documents appear to relate to a single report, OEI-02-09-00200; none of the documents appear to relate to OEI-02-09-00201. 2. The Parties Arguments Regarding the Documents in Table 10 In its Motion to Compel, Life Care argues that the documents in Table 10 are “[n]ot reflective of inter-agency or intra-agency deliberations” because the Government shared them with “third parties who were not government employees and who were not part of any interagency or intra-agency deliberative review process.” Mot. to Compel 18. Therefore, Life Care argues these documents are not covered by the deliberative process privilege. Mot. to Compel 18. The Government responds that contractors' work product is protected by the deliberative process privilege. It explains that OEI contracted with FMAS Corporation to employ clinicians to conduct the medical review support for the reports because OEI does not employ clinicians. Nudelman Decl. ¶ 29. It further explains that the medical reviewers functioned as part of the report team and “collaborate[d] on methodologies for collecting data, designing the survey instrument used to gather data from the medical records, programming the survey instrument, as well as on the review and input of the MDS data points from the medical records.” Nudelman Decl. ¶ 29. According to the Government, before “beginning the medical review, OEI tested the survey instrument on a separate sample of claims to determine whether to make changes to the survey instrument.” Nudelman Decl. ¶ 31. It also submits that the instruments “evolved over time as the medical review team re-evaluated the content of the instruments.” Nudelman Decl. ¶ 32. Thus, it submits that the documents withheld contain “the preliminary draft instructions and questions OEI posed to the medical review team, as well as questions the medical review team asked of OEI,” and “a broad array of questions designed to collect many data points, not all of which were ultimately incorporated into the reports.” Nudelman Decl. ¶ 32. Finally, it submits that “data points which were ultimately found reliable and used in the report are defined and described in the final reports themselves.” Nudelman Decl. ¶ 32. Life Care's Reply does not specifically address survey instruments. 3. The Special Master's Recommendations Regarding the Documents in Table 10 In its review of the documents in Table 10, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 10, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 10 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 10, pp. 153-154. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable *47 ● The Special Master finds that all of the documents in Table 10 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that these documents are drafts based on the Government's privilege log description, markings indicating the document is in draft form, and/or redline edits or notes. ● Where these documents were prepared by or shared with an outside consultant, the Special Master finds that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on its consideration of the pleadings, additional information from the parties, and the documents themselves. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. o The Special Master determined that these survey documents by their nature contain very little factual information and are designed to enable personnel to conduct surveys for relevant information, not to present facts. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master does not find that any documents in Table 10 are both protected by the deliberative process privilege and contain severable factual information. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that all of the documents in Table 10 are protected by the deliberative process privilege. L. Recommendations Regarding Documents Identified in Life Care's Table 11 1. Summary of Documents in Table 11 Table 11 contains five documents originally withheld from production by the Government as protected by the deliberative process privilege, all identified on the Government's privilege logs. The Government did not withdraw its assertion of the deliberative process privilege on any document in Table 11 which resulted in five documents for the Special Master's review. Based on the Government's description of these documents in the Government's Amended Sixth Privilege Logs, Life Care categorized these documents as “Notes from Meetings and Meeting Minutes.” Mot. to Compel 18. The Government described these documents as “OIG Analyst Notes.” Opp'n to Compel 20. Ms. Nudelman's Declaration (Ms. Nudelman is identified as the custodian for three of the documents contained in Table 11) stated that these documents are OIG analysts' personal notes from OIG meetings with CMS staff regarding the planned evaluation design and reflect the OIG analysts' consultations regarding the evaluation design and the impressions, thoughts, and opinions of the moment from those meetings. Nudelman Decl. ¶¶ 37–38. The Special Master's review reveals that these five documents are duplicative and that Table 11 includes only two unique documents. Both are notes memorializing collaborative exchanges between OIG and CMS/medical reviewers regarding the methodology and internal processes used in drafting an OIG report on SNFs. The Special Master finds that three of the documents are handwritten notes reflecting the contents of a meeting between OIG and CMS/medical reviewers, and two of the documents are typed notes based on a telephone conference between OIG and CMS/medical reviewers. Contrary to the Government's log, which identifies three handwritten documents and attributes them to different reports (OEI-02-09-00200 and OEI-02-09-00201), these documents are duplicates of one another and are therefore unlikely to relate to different reports. Similarly, though the Government's log identifies two typed documents and attributes them to different reports, these documents are also duplicates of one another and are therefore unlikely to relate to different reports. 2. The Parties Arguments Regarding the Documents in Table 11 *48 In its Motion to Compel, Life Care argues that “[s]everal of the documents included in this category ... were omitted from the Government's Amended Sixth Privilege Log and ultimately were produced,” and that the Government “subsequently changed many of the descriptions for these documents in the Amended Sixth Privilege Log” without “explain[ing] the discrepancy in the document descriptions” or providing information to “justify its re-characterization.” Mot. to Compel 19. Life Care also submits that “ ‘impressions and stakeholder suggestions' are neither predecisional nor deliberative.” Mot. to Compel 19. The Government responds that “[a]nalyst notes are exactly the type of material that courts have found to be protected.” Opp'n to Compel 20 (citing Moye, O'Brien, O'Rourke, Hogan & Pickert v. Nat'l R.R. Passenger Corp., 376 F.3d 1270, 1279 (11th Cir. 2004); Judicial Watch v. Clinton, 880 F. Supp. 1, 13 (D.D.C. 1995)). It argues that “[c]ourts have routinely protected OIG's internal investigative material and working papers from disclosure in order to protect the integrity of its investigations, reports, and policy recommendations.” Opp'n to Compel 16 (citing United States ex rel. Williams v. Renal Care Group, 696 F.3d 518, 527 (6th Cir. 2012)). Finally, it contends that, “ ‘[i]f [agency] investigators, attorneys and other employees knew that their personal notes and observations ... would be subject to disclosure ... then frank and open communication within the agency would clearly be hindered.’ ” Opp'n to Compel 20 (quoting Equal Empl. Opportunity Comm'n v. Tex. Hydraulics, Inc., 246 F.R.D. 548, 553 (E.D. Tenn. 2007)) (alteration in original). 3. The Special Master's Recommendations Regarding the Documents in Table 11 In its review of the documents in Table 11, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 11, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 11 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 11, p. 154. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that all of the documents in Table 11 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● Where these documents were prepared by or shared with an outside consultant, the Special Master finds that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on its consideration of the pleadings, additional information from the parties, and the documents themselves. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. *49 o The Special Master determined that the analysts' notes by their nature contain very little factual information, as they document the participants impressions, thoughts, and opinions at the time of those meetings. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master does not find that any documents in Table 11 are both protected by the deliberative process privilege and contain severable factual information. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that all of the documents in Table 11 are protected by the deliberative process privilege. M. Recommendations Regarding Documents Identified in Life Care's Table 12 1. Summary of Documents in Table 12 Table 12 contains 448 documents originally withheld from production by the Government as protected by the deliberative process privilege.[33] The Government withdrew its assertion of the deliberative process privilege as it relates to 151 documents in Table 12. After taking into account any “Container Files” and/or “Unopenable Spreadsheets,” this resulted in a total of 296 documents for the Special Master's review. Based on the Government's description of these documents in the Government's Third Privilege Log – First Supplement, Life Care describes Table 12 as “emails that do not contain or reflect predecisional deliberations, opinions, recommendations, or advice.” Mot. to Compel 19. The Government's Response in Opposition does not directly address the emails in Table 12. Rather, the Government withdraws its privilege assertion for many of these documents. Opp'n to Compel Ex. 1 at 2–3. Based on the Special Master's review, it determined that because the documents in Table 12 were grouped by Life Care based on their status simply as emails, the emails and their attachments do not have a common theme. Instead, Table 12 contains a variety of different documents (many of which are also included in other tables), including fact sheets, draft reports, communications with and reports from outside consultants, talking points, reports of monitoring activities, memoranda regarding proposed SNF rules, summary statements, inter-agency comments on proposed rules, spreadsheets and analyses of RUG distributions, draft press releases, drafts of final rules, drafts of proposed rules, and draft letters to Congress. 2. The Parties Arguments Regarding the Documents in Table 12 In its Motion to Compel, Life Care argues that the entries on the Government's privilege logs regarding the documents in Table 12 are insufficient to establish that they are protected from disclosure by the deliberative process privilege. Life Care explains that “for each entry identified in Exhibit A, Table 12, the Government describes only the attachment(s), not the emails, as containing or reflecting ‘predecisional deliberations, opinions, recommendations, or advice.’ +” Mot. to Compel 20. *50 As stated above, the Government does not make a substantive argument specifically addressing Table 12 in its Opposition. The Government states only that Life Care has not requested the attachments to these emails in its Motion to Compel. Opp'n to Compel. Ex. 1. Life Care does not object or respond to this argument in its Reply. Based on the Special Master's review of the pleadings, the Special Master finds that the attachments are, in fact, at issue and thus reviewed said attachments to make findings as to whether the documents are protected by the deliberative process privilege. 3. The Special Master's Recommendations Regarding the Documents in Table 12 In its review of the documents in Table 12, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 12, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 12 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 12, pp. 154-174. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that 205 documents in Table 12 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the majority of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The other documents included in Table 12 are preliminary data and data analyses used to support and inform policy changes; emails with substantive, internal discussions regarding policy considerations; and, internal comments between agencies regarding proposed changes to rules and policies. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master finds that 18 documents in Table 12 are covered by the deliberative process privilege but nonetheless contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master also finds that these documents contain some purely factual information but that this factual information is severable because the deliberative information can be reasonably redacted without revealing the Government's internal deliberations, opinions, and analysis. *51 ● Some of these documents are emails that contain factual information or non-deliberative discussions in one part of an email string and protected discussions in another section. Others are internal briefing documents that have clear factual sections. For both types of documents, the factual, non-deliberative discussions can be severed from the deliberative discussion contained therein. ● The Special Master has determined that the majority of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. ● The Special Master has prepared redacted versions of these documents accordingly. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that 73 documents in Table 12 are not covered by the deliberative process privilege. The Government has not met its burden of proof that the deliberative process privilege applies to these documents. A description of these documents and the reasoning behind the Special Master's conclusions are as follows: o Publicly Available Materials: These include memoranda and reports on projects which have already been made publicly available and can be readily found on the internet through an internet search. See, e.g., LAM001-119961 (http://oig.hhs.gov/oei/reports/oei-02-09-00204.pdf); LAM001-116308 (http://www.cms.gov/Medicare/Medicare-Fee-for-ServicePayment/SNFPPS/TimeStudy.html). o Correspondence from third parties: These were pieces of correspondence from third parties that were neither intra-agency nor with a consultant acting as an employee for the agency. Such correspondence is thus not protected by the deliberative process privilege. Third parties in this category included the American Health Care Association (LAM001-134256) and Senator Roy Blunt (LAM001-117579). o Materials Certified Discoverable under FOIA: Table 12 includes a number of attachments to emails where the email expressly states that the accompanying information is not exempt from disclosure under FOIA and, accordingly, would not be protected by the deliberative process privilege in civil discovery. See, e.g., LAM001-133446. o Briefing Documents: These documents include external briefing papers in final form. Such briefing papers represent final determinations of agency policy. They are therefore not deliberative or pre-decisional and are therefore not protected by the deliberative process privilege. o Emails without Deliberation or Substantive Discussions: The Special Master finds that certain emails are not predecisional and/or do not contain deliberations regarding policy decisions. These are cover emails that provided non-deliberative information regarding attached documents. o GIF or Image Files: There were a number of image or GIF files in Table 12 that were images, either blank or logos, that the Special Master finds are clearly not protected by the deliberative process privilege. o Duplicates of Documents for Which the Government Withdrew Privilege: The Special Master determined that the Government has effectively withdrawn its claim of privilege over 27 documents that are identical to documents over which the Government already withdrew its initial claim of privilege. The Special Master determined that these documents are duplicates, based on a review of the MD5 Hash values provided by the Government in its production load files, and thus the Government's withdrawal of privilege is applicable to those identical documents. N. Recommendations Regarding Documents Identified in Life Care's Table 13 1. Summary of Documents in Table 13 *52 Table 13 contains 180 documents originally withheld from production by the Government as protected by the deliberative process privilege.[34] The Government withdrew its assertion of the deliberative process privilege as relates to one document in Table 13, which resulted in a total of 179 documents for the Special Master's review. Based on the Government's description of these documents in the Government's Amended Sixth Privilege Log, Life Care describes these documents as miscellaneous documents, that “did not fit into any of the twelve categories above.” Mot. to Compel 20. The Government's Response in Opposition describes these documents as “annotated draft OIG reports,” “draft rules,” and “miscellaneous documents.” Opp'n to Compel 20, 23, 32. The Special Master's review of these documents confirms that Table 13 contains miscellaneous documents, roughly falling into the following categories: ● Draft Letters to Congress: This table includes a number of draft letters created by DIPC to be sent to members of Congress that still needed to go through multiple approvals from superior DIPC members. At the end of most of the letters is a “Summary Statement,” that reveals the recommendations and/or deliberations regarding the content of the letter. ● Draft Reports, Press Releases, and Memoranda: The table also includes multiple versions of draft Reports to Congress, draft press releases, and drafts of miscellaneous memoranda. ● Documents related to OEI papers related to OEI-02-09-00200: The table includes drafts of report OEI-02-09-00200 and its supporting documents. It also includes detailed agendas containing recommendations and strategic decisions for a call with FMAS reviewers. FMAS is an outside consultant providing medical reviewers. ● Intra-agency communications: The table also includes a limited number of documents prepared by DIPC containing its responses to comments suggested by OMB on FY2009 SNF Rule and others with intra-agency discussions regarding RUG trends. 2. The Parties Arguments Regarding the Documents in Table 13 In its Motion to Compel, Life Care addresses a number of individual documents specifically by Bates number in presenting its arguments. Life Care does not directly address the other documents in Table 13. Instead, these documents are addressed elsewhere in the pleadings. Summarized below are the parties' arguments based on these specific documents: CMS020-166234: Life Care cites the Government's description of this document on its Seventh Privilege Log (First Supplement) as a “ ‘Documented Email string discussing RUGs trends and containing or reflecting predecisional deliberations, opinions, recommendations, or advice.’ ” Mot. to Compel 21 (quoting Mot. to Compel Ex. F). From this description, Life Care reasons, “it does not appear that the documented [sic] reflected a consultative process. Instead, the document appears to merely contain a discussion about factual information – the RUGs trends.” Mot. to Compel 21. In response, Elizabeth Richter, on behalf of the government, maintains that the document includes staff discussion of the effectiveness of certain aspects of the SNF rule and that it “contains a request for analysis of certain Resource Utilization Group trends in order to test the hypotheses posed by agency employees as they consider whether modifications to skilled nursing facility policy are warranted.” Opp'n to Compel 33. *53 LAM001-008723, LAM001-049407. LAM001-008886, and LAM001-008734: Life Care cites the Government's description of these documents on its Third Privilege Log – First Supplement (in four separate entries) as “ ‘[d]ocument[s] prepared by Sheila Lambowitz containing DIPC response to comments suggested by OMB on FY 2009 SNF rule and containing or reflecting predecisional deliberations, opinions, recommendations, or advice about content of final rule.’ ” Mot. to Compel 24 (quoting Mot. to Compel Ex. C). Life Care argues that these materials are not protected by the deliberative process privilege, as “[i]t is clear from the description that the Government claims that the deliberative process privilege only applies to the portion of the document ‘containing [the] DIPC response.’ ” Mot. to Compel 24 (quoting Mot. to Compel Ex. C). Life Care requests that these documents be redacted to remove only the DIPC response. Mot. to Compel 24. In response, the Government argues that “[t]hese documents include OMB's questions on proposed rules, and the draft responses by DIPC.” Opp'n to Compel 33. It also asserts that “OMB's questions reveal its potential concerns and thus the give– and-take of the deliberations between the agencies.” Opp'n to Compel 33. LAM001-092948: This is an email sending an attached “template” for the FY 2009 proposed rule. According to Life Care, “the Government has failed to establish how a template could reflect the deliberative process.” Mot. to Compel 20–21. In response, the Government states that this is not merely a “template” with blank space, but is rather a draft of a proposed rule, upon which the agency staff then built, and the email string to which the document is attached includes the agency's internal discussion of a possible option for the 2009 proposed rule. Opp'n to Compel 39. PRIV-OIG-009240, PRIV-OIG-009536, PRIV-OIG-009942, PRIV-OIG-011027, and PRIV-OIG-011638: These are drafts of the OEI report, OEI-02-09-00200 and supporting documents in various outputs. According to Life Care, the differences in the descriptions between “the Government's Sixth Privilege Log and Amended Sixth Privilege Log call into question the accuracy of the Government's privilege claims for these documents.” Mot. to Compel 22. In its response, the Government, in a footnote, states that the Amended Sixth Privilege Log was created at Life Care's request and provides a more precise description of the documents. Opp'n to Compel 21 n.11. In regard to these documents, Jodi Nudelman, in her Declaration on behalf of the Government, explains that these documents “constitute the annotated packages of the OIG draft reports and the associated supporting documents.” Nudelman Decl. ¶ 27. Ms. Nudelman states that these “annotated reports are not the final reports and contain handwritten comments of OIG personnel about the contents of the reports and whether the conclusion in the report[s] can be sustained by the supporting documentation.” Nudelman Decl. ¶ 27. She further maintains that these annotated documents “are internal tools for validating the report findings” and that these “annotation packages are an essential part of OEI's internal quality controls.” Nudelman Decl. ¶ 27. PRIV-OIG-008958 and PRIV-OIG-010745: These are detailed agendas for a call with FMAS medical reviewers regarding an OEI questionnaire. Life Care argues that the “descriptions provide no information to support a conclusion that the meeting agendas were deliberative and/or predecisional.” Mot. to Compel 22. In response, Ms. Nudelman states that these are “[d]etailed agendas written by the lead OEI analysts for a call between OEI and the medical review team” as part of the OEI report process. Nudelman Decl. ¶ 39(b). She explains that “[d]uring the call, the lead analyst described the proposed report methodology and interim goals for the OEI-02-09-00200 and OEI-02-09-00201 reports, and discussed and explained the proposed survey instrument.” Nudelman Decl. ¶ 39(b). She also asserts that the “agendas contain the lead analyst's comprehensive notes summarizing the issues and topics to be raised during the call and reflect the analyst's preliminary thoughts on the report methodology and goals and the proposed survey instrument.” Nudelman Decl. ¶ 39. 3. The Special Master's Recommendations Regarding the Documents in Table 13 *54 In its review of the documents in Table 13, the Special Master applied the legal standard set by the Court's Order. The Special Master's legal conclusions were informed, but not controlled, by cases consistent with the Court's legal standard. As relates to the documents in Table 13, based on its review, the Special Master makes factual and legal findings as described below. This section does not describe those findings regarding each document in Table 13 individually, but rather describes those findings more generally. For the Special Master's findings regarding the application of the deliberative process privilege on a document-by-document basis, see Attachment A, Table 13, pp. 174-217. The Special Master recommends that these findings be adopted by the Court. a) Documents Protected by the Deliberative Process Privilege and Not Severable ● The Special Master finds that 179 documents in Table 13 are covered by the deliberative process privilege and do not contain severable factual information. The Government has met its burden of proof that the deliberative process privilege applies to these documents as they reflect predecisional and deliberative communications by and among government agencies and/or outside consultants engaged by those agencies. ● The Special Master determined that the majority of these documents are in draft form based on the following: the Government's privilege log description, cover emails identifying the document at issue as a draft, markings indicating the document is in draft form, redline edits and notes, and/or where it is undated, unsigned, incomplete, or a combination thereof. The remaining documents are predecisional communications between Government agencies (and at times including a CMS contractor) containing internal deliberations, policy considerations, and strategic analysis. ● Where these documents were prepared by or shared with an outside consultant, the Special Master determined that these outside consultants were functioning as employees of the Government and that the privilege would extend to communications with them. The Special Master made this determination based on its consideration of the pleadings, additional information from the parties, and the documents themselves. ● The Special Master finds that these documents do contain purely factual information, but that it is not severable because it cannot reasonably be separated from deliberative information without revealing the Government's internal deliberations, opinions, and analysis. b) Documents Protected by the Deliberative Process Privilege, But Containing Severable Factual Information ● The Special Master does not find that any documents in Table 13 are both protected by the deliberative process privilege and contain severable factual information. c) Documents Not Protected by the Deliberative Process Privilege ● The Special Master finds that all of the documents in Table 13 are protected by the deliberative process privilege. VI. CONCLUSION For all these reasons, the Special Master recommends that the Court adopt the factual and legal findings detailed above and in Attachment A. Footnotes [1] In its Order, the Court directed both parties to “designate a lead attorney as a point of contact for the Special Master ... [with] sufficient authority and knowledge to make commitments and carry them out to allow the Special Master to accomplish his duties.” Order 11, United States ex rel. Martin v. Life Care Ctrs. of Am., Inc., No. 1:08-cv-251 (Apr. 27, 2015) [Dkt. No. 274] (hereinafter April 27 Order). The lead attorneys appointed by both parties performed these duties with diligence and responsiveness, and their assistance was greatly appreciated by the Special Master. [2] When describing the activities of the Special Master in conducting the review ordered by the Court, this report refers to the “Special Master” to include both the Special Master himself and those King & Spalding personnel conducting the review of documents pursuant to the Court's Order. See infra p. 12 (describing the use of King & Spalding attorneys in the review process). [3] Attachment A is a spreadsheet identifying all documents at issue by Bates number, additional information regarding those documents pertinent to the Special Master's review, and the Special Master's ultimate recommendation regarding the privileged nature of each document. At their request, the Special Master will provide the parties with an electronic copy of Attachment A. [4] An additional 61 documents among the 2,697 are not included in these numbers due to technical issues described in Section IV.C. [5] The Special Master will coordinate with the Government to provide it with copies of the Special Master's recommended redactions. [6] The Government's productions also contained a small number of documents that were not at issue in Life Care's Motion to Compel and, accordingly, not included in the Special Master's review. For instance, the May 21, 2015, production of documents to the Special Master appears to have contained the database file referenced in Paragraph 35a of Ms. Nudelman's Declaration, which (as that Declaration notes) is not at issue in Life Care's Motion to Compel. [7] See generally Vioxx Prods. Liab. Litig. Steering Comm. v. Merck & Co., Inc., No. 06-cv-30378 2006 WL 1726675, at *3 (5th Cir. May 26, 2006) (noting that the party asserting privilege “should have the opportunity to support its claim of privilege when it is necessary to do so”). [8] The Special Master had a number of communications with the Government in order to confirm the documents over which the Government withdrew its assertions of privilege. In its pleadings, the Government withdrew its privilege assertions to the following documents: ● The Government withdrew in their entirety its claims of privilege with respect to the documents identified by those Bates numbers in its Privilege Logs. Opp'n to Compel Ex. 1 at 1 (identifying 25 documents by Bates number, which, with their attachments included totaled 156 documents). ● The Government withdrew its claims of privilege with respect to all cover e-mails identified in Life Care's Table 12, with certain exceptions listed therein. Opp'n to Compel Ex. 1 at 2 (identifying 87 documents without reference to Bates numbers). The Government explicitly did not withdraw its assertion of privilege over the documents attached to those emails, noting that Life Care had not challenged the Government's claims of privilege with respect to those attachments. ● The Government listed the beginning Bates number of certain e-mails identified on Life Care's Table 12 and stated the Government has withdrawn its claims of privilege with respect to both the e-mails and their attachments (which are not separately identified by Bates number in Table 12). Opp'n to Compel Ex. 1 at 2 (identifying 19 documents by Bates number). In the Government's May 21, 2015 letter to the Special Master, it withdrew its privilege assertions as follows: ● Seven documents identified by Bates number. The Government withdrew its claims of privilege as to portions of those documents. For four of the documents, the Government provided redacted copies specifically identifying the portions over which its claims of privilege are not withdrawn. For three of the documents, the Government identified the page numbers of the documents over which it no longer claims privilege. ● One-hundred and twenty-four documents identified by Bates number. The Government withdrew its claims of privilege over these documents. These documents are generally emails with attachments. The Government continued to claim privilege over the attachments unless it specifically listed their Bates number. [9] A “Parent/Child” relationship between documents is generally defined as: Document (or Document Family): A collection of pages or files produced manually or by a software application, constituting a logical single communication of information, but consisting of more than a single stand-alone record. Examples include a fax cover, the faxed letter, and an attachment to the letter—the fax cover being the “Parent,” and the letter and attachment being a “Child.” The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Mgm't, 14, Fourth Ed. (Apr. 2014), available athttps://thesedonaconference.org/publication/TheS̈edona0̈ConferenceB2≥G̈loss ary (last visited Aug. 31, 2015). [10] These documents are identified in Attachment A as “Privilege Assertion Withdrawn” and “Identical to Privilege Assertion Withdrawn,” respectively. [11] This issue arose with two types of electronic files: 1. ZIP Container Files The Government's production included 29 Zip “container” files which are non-substantive files that contain other individual records. “Container” files are generally defined as “[a] compressed file containing multiple files; used to minimize the size of the original files for storage and/or transporting.” Sedona Conf. Glossary 8. All of the documents contained in these containers files were reviewed and evaluated for the deliberative process privilege as individual standalone documents and the findings related to those documents are addressed in this report and identified in Attachment A. The Special Master found that these container files contain both privileged and non-privileged documents. Although container files are non-substantive and, accordingly, not protected by the deliberative process privilege, producing the container files would result in the production of their contents, i.e., all documents contained therein, privileged and non-privileged alike. Therefore, the Special Master recommends the withholding of the container files from production. These container files are identified as “Container Files” in Attachment A. 2. Embedded Spreadsheet Files The Government's production included 36 spreadsheet files which could not be opened by the Special Master's electronic discovery vendor and, therefore, were unable to be reviewed by the Special Master. However, the Government confirmed to the Special Master that these spreadsheets were duplicates of spreadsheets that were “embedded” in other documents (largely, PowerPoint files) that had also been produced for review. “Embedded” documents are generally defined as “[a] file or piece of a file that is copied into another file, often retaining the utility of the original file's application; for example, a part of a spreadsheet embedded into a word processing document that still allows for editing and calculations after being embedded.” Sedona Conf. Glossary 16. In their embedded form, the Special Master was able to access and review these documents. Accordingly, in that form, all of these spreadsheet files were reviewed and evaluated for the deliberative process privilege and the findings related to those documents are addressed in this report and identified in Attachment A. The spreadsheet files which could not be opened are identified as “Unopenable Spreadsheet” in Attachment A. [12] “Metadata” is generally defined as “[t]he generic term used to describe the structural information of a file that contains data about the file, as opposed to describing the content of a file.” Sedona Conf. Glossary 29. [13] In particular, much of the information provided in the June 18, 2015 letter was duplicative of much of Ms. Nudelman's Declaration. [14] These issues with the Government's privilege logs predate this matter having been submitted to the Special Master and were present when they were originally produced to Life Care. [15] This includes emails which, on their face, do not have any attachments, or, where an attachment is visible on the cover email, but the Government claims many additional “attachments” beyond what the face of the email actually reflects. In these instances, it is unclear how the Government determined the grouping of these documents, which again caused the Special Master to spend additional time and effort in deciphering the nature of the documents in order to evaluate them for the deliberative process privilege. [16] In performing its research, the Special Master found limited case law applying the deliberative process privilege in the context of civil discovery requests. The Special Master, therefore, also examined law and other guidance applying Exemption 5 to disclosure under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), which “preserves to the agencies such recognized evidentiary privileges as the attorney-client privilege, the attorney work-product privilege and the executive ‘deliberative process' privilege.” Apr. 27 Order 4 (quoting Parke, Davis & Co. v. Califano, 623 F.2d 1, 5 (6th Cir. 1980) (internal citation omitted)). [17] The documents on the Tables overlap to a certain extent, as Life Care put individual documents on multiple Tables. [18] “Hash coding” is generally defined as “[a] mathematical algorithm that calculates a unique value for a given set of data, similar to a digital fingerprint, representing the binary content of the data to assist in subsequently ensuring that data has not been modified. Common hash algorithms include MD5 and SHA.” Sedona Conf. Glossary 21; see also Inventory Locator Serv., LLC v. PartsBase, Inc., No. 02-cv-2695, 2005 WL 6062855, at *6 n.4 (W.D. Tenn. Oct. 19, 2005) (quoting expert testimony that “ ‘MD5 Hash, which is a kind of cryptographic hash algorithm,’ ” is “ ‘the industry standard and court recognized form of documenting the contents of a file through a proven mathematical function ... [t]his specific mathematical function will take any length of data and create a fixed length representation of it that can be used to demonstrate that no evidence was modified in the process of data analysis or reconstruction. This means that you would take a ‘Hash’ of the original evidence and the ‘bit stream’ image created and compare the two over time to verify that they are still exact duplicates.' ”). [19] The Special Master has relied on the MD5 Hash coding provided by the Government – which identifies which documents produced by the Government are duplicates of each other – to ensure consistent recommendations with respect to any duplicate documents. Also, as explained in Section IV.C, the Special Master attempted to review similar documents one after another to ensure consistent recommendations. Likewise, the Special Master analyzed all email “from,” “to,” “date,” and “subject” lines to identify related emails and email chains and then worked to ensure consistent recommendations throughout. [20] Of the documents associated with Life Care's Table 1, the Government's privilege logs only identified 200 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [21] Ms. Richter's Declaration specifically discusses draft reports of various types, explaining in detail why they represent the deliberative process engaged in by agency employees. Richter Decl. ¶¶ 20–30. [22] The Special Master reaches the conclusion that these documents are “identical” based on a word-for-word comparison. [23] Of the documents associated with Life Care's Table 2, the Government's privilege logs only identified 7 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [24] Of the documents associated with Life Care's Table 3, the Government's privilege logs only identified 306 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [25] The final STRIVE report, which contains the factual data analyses ultimately utilized in this project, is publicly available on CMS's website. See https://www.cms.gov/Medicare/MedicareFee-for-Service-Payment/SNFPPS/TimeStudy.html (last visited Aug. 31, 2015). [26] See supra note 9, describing the concept of “parent” and “child” documents. [27] Of the documents associated with Life Care's Table 4, the Government's privilege logs only identified 54 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [28] Of the documents associated with Life Care's Table 5, the Government's privilege logs only identified 94 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [29] Of the documents associated with Life Care's Table 6, the Government's privilege logs only identified 18 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [30] Of the documents associated with Life Care's Table 7, the Government's privilege logs only identified 40 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [31] Of the documents associated with Life Care's Table 8, the Government's privilege logs only identified 92 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [32] Of the documents associated with Life Care's Table 9, the Government's privilege logs only identified six documents by Bates number. The discrepancy between the six documents on the logs and the ten documents associated with the Table is due to the fact that the Government provided the Special Master with an unredacted version and a partially redacted version of four of the six documents on the logs. The four redacted documents bear identical Bates numbers to their non-redacted versions except for the inclusion of “_Redacted” following the number. The partially redacted versions were each provided as a “child” to the unredacted version. [33] Of the documents associated with Life Care's Table 12, the Government's privilege logs only identified 142 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents. [34] Of the documents associated with Life Care's Table 13, the Government's privilege logs identified 178 documents by Bates number. The discrepancy between the logs and the total number of documents associated with the Table is due to the fact that the Government listed only parent documents by Bates number in its logs, but did not specifically identify by Bates number the attachments to those documents.