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JOHN N. HANSON DIRECT DIAL NUMBER (202) 789-6015 BY HAND (202) 789-6000 TELECOPI ER (202) 789-6190 October 28, 1994 Alice L. Mattice, Esq. Environment and Natural Resources Division Environmental Defense Section U.S. Department of Justice P.O. Box 23986 Washington, D.C. 20026-3986 40TH FLOOR 437 MADISON AVENUE NEW YORK, N. Y. 10022-7380 (212) 702-5400 BEVERIOGE & DIAMOND SUITE 400 ONE BRIDGE PLAZA FORT LEE, N. J. 07024-7502 (201) 585-8162 BEVERIDGE & DIAMOND SUITE 3400 ONE SANSOME STREET SAN FRANCISCO, CA 94104-4438 (415) 397-0100 Re: Flue-Cured Tobacco Cooperative Stabilization Corp., et al. v. U.S. Environmental Protection Agency, et a Dear Alice: We have now had an opportunity to review defendants' response to plaintiffs' requests for admissions and production of documents and, consistent with Local Rule 204(c) of the United States District Court for the Middle District of North Carolina, take this opportunity to explain why that response fails to meet even the minimum standards required of any litigant under the Federal Rules of Civil Procedure and to encourage defendants to be more responsive to plaintiffs' requests. Our most significant area of disagreement is, of course, defendants' position that they need not respond to our requests at all because plaintiffs' right to discovery is confined to the administrative record recently created by Mr. Farland. While there are many other reasons why we-would disagree with your position even if there had been a true administrative record of EPA's ETS Risk Assessment, it is unnecessary to discuss those reasons here because there was no administrative record of any description at the time of the agency action itself, at the time this case was filed or at the time the defendants filed their motion to dismiss. It was only after the Court denied EPA's motion and the agency faced the prospect of having to respond to pending discovery requests that the "administrative record" produced by defendants was created. The facts now show that the so-called "administrative record" is simply a very recent invention to enable the agency to ignore the actual discovery requests it faced and select documents of its own choosing for production. LAW OFFICES BEVERIDGE & DIAMOND, P C. SUITE 700 1350 1 STREET, N. W. WASHINGTON, D. C. 20005-3311

BEVERIDGE & DIAMOND, P. C. Alice L. Mattice, Esq. October 28, 1994 Page 2 We urge you to reconsider defendants' position on this fundamental point of disagreement. Turning to defendants' response to the request for admissions, we do not understand why, even in light of defendants' position on the "administrative record," they have refused to respond to even a single requested admission. The requested admissions did not seek to discover new facts or information outside the parameters of an existing administrative record but, consistent with the Advisory Committee Notes to Fed.R.Civ.P. 36, to "facilitate proof with respect to issues that cannot be eliminated from the case, and secondly, to narrow the issues by eliminating those that can be." You may disagree with the relevance of some of the requests, but that is no justification for refusing to respond to them. We regard defendants' proffered stipulations as wholly inadequate and further evidence that defendants simply seek to respond to requests of their own creation, rather than the actual requests they faced. Defendants' response to the requests to admit is particularly disappointing in light of our efforts, made at your urging, to reduce the number of admissions requested. Our demonstrated willingness to work with you belies defendants' claim of "unreasonable burden." What we have said above applies with equal force to the defects inherent in defendants' general objections to our document requests, and we will not belabor the point further. However, defendants' responses to specific requests are in many places so unenlightening as to make-it impossible to understand what was produced in the materials defendants chose to produce and what documents, if any, they chose to withhold. First, defendants objected to the requests in general on the grounds of privilege but, contrary to the instructions in the request and proper procedure, defendants failed to provide any information about the documents to evaluate claims of privilege. Indeed, it is impossible to tell from your response whether defendants have actually withheld any documents on the basis of a claimed privilege. If you have withheld documents on that basis, please provide the information requested in the instructions for each document. In defendants' response to the first request, and elsewhere in your responses to other requests, you state that defendants are providing "all of the existing Acrencv reco_rds...." (Emphasis

BEVERIDGE & DIAMOND, P. C. Alice L. Mattice, Esq. October 28, 1994 Page 3 supplied). Defendants were asked to provide "all [responsive] documents that are in your possession, custody or control, including any materials held by third parties such as EPA contractors or consultants." We are left to presume that "existing Agency records" encompass fewer files than "all documents" as defined and required by our production request. Please advise us of your definition of agency records, the files which respond to our request which defendants have refused to produce because of their agency record limitation and the reasons for their refusal. Please also advise us if defendants are aware of any responsive documents which have been deleted or destroyed, a concern raised by the word "existing" used here and in defendants' general objections. In several of defendants' responses, e.g. 6b, 7(i), 9, 41- 42, you raise Privacy Act objections to the production of certain documents. To the extent defendants truly have Privacy Act concerns we are willing to work with you to alleviate them by the deletion of problematic information. Similarly, defendants raise objections of overbreadth and undue burden in response to many of our requests. While we tried to avoid imposing an undue burden when framing our requests we are willing to discuss with you language revisions to specific requests to reduce the burden. To do so, we need to be provided with specific information like that supplied on page 7 of your response explaining your burden objection to request 02. In response to requests 6C, 23, 25-30, 32-35, and 37-41, defendants state that "Agency records responsive to this request" are being produced. In some of defendants' responses, you state that "all" of the Agency records are being provided (J1) and in others you state that "numerous Agency records" are being provided (#3) - presumably fewer than "all." Are you providing fewer than all responsive agency records in response to 6C, 23, 25-30, 32-35, and 37-41? If so, please disclose the criteria used to decide which documents to withhold. In response to request 12 defendants state that they are providing "all" responsive documents "relied upon by EPA" and "numerous other responsive documents." Please provide us the definition of the term "relied upon" you employed in framing defendants' response. Please disclose defendants' justification for withholding documents created or received but not "relied upon" by EPA. We would also appreciate knowing the criteria you employed in selecting the "numerous other responsive documents" to produce and those you chose to withhold, not only in '

BEVERIDGE & DIAMOND, P. C. Alice L. Mattice, Esq. October 28, 1994 Page 4 defendants' response to request 12 but in other responses where they employ that term. Unfortunately defendants,' response to our request for production is filled with ambiguities and fails to clarify the categories of documents you have chosen to withhold and the specific reasons for doing so. The information we have requested would lessen that problem and permit us to work with you to resolve at lease some of your objections. Best regards. Very truly yours, n N. Hanson cc: All Counsel JNH/mpb P:\CLI\10\73\2852\LTR\2852JNH.06