PACIFIC GAS AND ELECTRIC COMPANY, Plaintiff, v. The UNITED STATES, Defendant, 69 Fed. Cl. 784

HEWITT, Judge. OPINION The court has before it Defendant’s Motion to Compel the Production of Documents and Deposition Testimony Improperly Withheld on the Basis of Privilege (Def.’s Mot. or Motion), PG & E’s Response to Defendant’s Motion to Compel the Production of Documents and Testimony Withheld as Privileged (PL’s Resp. or Response), and Defendant’s Reply to Plaintiffs Response to Defendant’s Motion to Compel the Production of Documents and Deposition Testimony Improperly Withheld on the Basis of Privilege (Def.’s Reply or Reply).

Defendant moves the court “to compel the production of documents and deposition testimony improperly withheld by plaintiff ... on the basis of the attorney-client privilege and the work product doctrine.” Def.’s Mot. at 1.

Defendant’s Motion lists six categories of documents that it moves the court to compel: (1) documents related to public regulatory proceedings, including, but not limited to, PG & E’s rate proceedings before the California Public Utilities Commission [(CPUC)], proceedings before the California Coastal Commission [ (CCC) ], and licensing proceedings before the Nuclear Regulatory Commission [ (NRC) ]; (2) memoranda prepared for the Board of Directors which contain business and regulatory information related to the public regulatory proceedings; (3) memoranda, correspondence, and reports drafted by non-lawyer PG & E employees sent to non-lawyer PG & E employees which happen to [provide a courtesy copy (ec) to] PG & E lawyers, among others; (4) memoranda, correspondence, and reports drafted by non-lawyer PG & E employees sent to non-lawyer PG & E employees, as well as counsel, which in the description indicates that the document was “provided at request of counsel”; (5) documents that purport to be attorney-client protected but contain no [indication of] author or recipient; and (6) documents sent to regulatory entities.

Def.’s Mot. at 2. With respect to testimony, defendant states that “PG & E counsel improperly instructed its deponents not to answer questions regarding its damages claim and whether the deponent had discussion with PG & E’s experts, during their depositions,” id., and moves the court to allow defendant to “re-open the depositions of Messrs. Pulley, Womack and Kapus,” id. at 19. Subsequent to the filing of defendant’s Motion, plaintiff and defendant reached an agreement with respect to most of the documents in categories three, four, five, and six. See Def.’s Reply at 3-5.

The production of documents listed in categories one (documents related to public regulatory proceedings) and two (memoranda prepared for the Board of Directors), with the exception of Document No. 683, remains in dispute. Id. at 5-7. Whether it was proper for plaintiff to instruct its witnesses not to respond during their depositions also remains in dispute. See id. at 8-11. Finally, in its Reply, defendant argues for the first time that the court “should order PG & E to produce any documents prepared for its regulatory proceedings by any third parties.” Id. at 8.

The court will rule on each of these items in ton. 1. Documents Related to Public Regulatory Proceedings A.

Summary of the Parties’ Arguments In its Motion, defendant states that “PG & E has improperly asserted work product privilege over more than two hundred documents that were prepared for presentation before one of several regulatory agencies that are charged with overseeing the operations at PG & E — the [California Public Utilities Commission (CPUC) ], the [Nuclear Regulatory Commission (NRC)], and the [California Coastal Commission (CCC) ].” Def.’s Mot. at 5. These documents, defendant argues, were created as a “neeessar[y] part of the ordinary course of [plaintiff’s] business.

The ‘primary motivating purpose’ behind the creation of the documents for these proceedings is not to assist in pending or impending litigation but rather to further PG & E[’]s business ... [by] set[ting] rates, ... licensing] its operations, or ... deal[ing] with its coastal property.” Id. at 8-9. Thus, defendant concludes, “[b]ecause the preparation of these documents was clearly necessary based on public requirements, they are not protected by the work product doctrine and must be produced.” Id. at 8.

Plaintiff responds that “ ‘[t]he work product privilege may be claimed for material prepared for administrative proceedings ... as well as for proceedings before courts of record.’ ” Pl.’s Resp. at (quoting Duplan Corp. v. Deering Milliken, Inc., 61 F.R.D. 127, 131 (D.S.C.1973)). Plaintiff states that this fact “alone disposes of most of the government’s complaints about PG & E’s privilege assertions.” Id. at 4.

Indeed, according to plaintiff, the administrative proceedings “conducted by these agencies are overseen by commissioners and administrative law judges appointed under federal and state constitutional authority ..., [and] each of these proceedings provides an opportunity for interested parties to intervene and participate in hearings concerning PG & E’s filings before the commission.” Id. at 4-5. Thus, plaintiff argues that these “Administrative proceedings ... constitute litigation” and documents prepared in connection with them should therefore be protected as work product. Id. at 5.

After describing why each type of administrative proceeding at issue should be characterized as “litigation” for the purposes of the work product doctrine, see id. at 5-7, plaintiff states that [t]he government argues that these documents had multiple purpose[s] ... because PG & E’s real interest was the underlying rates or licenses that are the subjects of the proceedings. But this argument is too broad. No plaintiff engages in litigation for the litigation itself. Even here, PG & E’s ultimate objective is obtaining a damages recovery, not engaging in litigation.

Nor can the government properly distinguish between a public utilities commission rate case filing or licensing application and the administrative litigation over such filings and applications. Those filings are akin to complaints in litigation before this [c]ourt. The subsequent litigation is all part of a single litigation proceeding. Id. at 8 (citation omitted). Moreover, plaintiff argues that the documents at issue “do not lose their privileged status simply because such litigation is routine for PG & E.” Id. at 8.

Finally, plaintiff asserts that [t]he government’s claim that the documents are not protected by the work product doctrine because they were created in response to specific regulatory requirements misstates the law and the nature of the documents at issue____ [T]he work product doctrine does not protect material assembled “[ ] pursuant to public requirements unrelated to litigation .... ” Thus, the existence of regulations concerning documents related to administrative litigation does not prevent a document from being protected by the work product doctrine. Id. at 9 (quoting United States v.

El Paso Co., 682 F.2d 530, 542 (5th Cir.1982)) (emphasis added in plaintiffs Response). Plaintiff therefore concludes that these documents, “created in anticipation and in support of adversarial regulatory actions,” should be protected under the work product doctrine. Id. at 9.

In its Reply, defendant argues that [w]hile PG & E states that the documents it has withheld are documents prepared for administrative proceedings at the CPUC, NRC, and CCC, PG[&]E has failed to meet its burden of establishing that “the primary motivating purpose” behind the creation of the documents was to assist in pending or impending litigation. PG & E has not met its burden because it cannot. The primary motivating purpose behind the creation of this category of withheld documents is to set its rates before the CPUC, to license its operating facilities before the NRC, or to establish permits before the CCC.

The Government does not deny that there may be litigation associated with these proceedings. However, ... [t]he test is not whether there may be litigation associated with the submission of documents to regulatory entities, but rather whether the documents were prepared primarily for litigation or alternatively, for some business reason. PG & E has not met this test.... Def.’s Reply at 6. Thus, defendant concludes, “the [c]ourt should order all documents withheld by PG & E that are related to regulatory proceedings before the CPUC, the NRC, and the CCC to be produced immediately.” Id. B. Discussion 1.

The Work Product Doctrine The work product doctrine, codified for the United States Court of Federal Claims in Rule 26(b)(3) of the Rules of the Court of Federal Claims (RCFC), is intended to preserve a zone of privacy in which a lawyer can prepare and develop legal strategy “with an eye toward litigation,” free from unnecessary intrusion by adversaries. Hickman v. Taylor, 329 U.S. 495, 510-511, 67 S.Ct. 385, 91 L.Ed. 451 (1947).

The work product doctrine provides for the qualified protection of documents and tangible things prepared by or for a party or that party’s representative “in anticipation of litigation or for trial.” RCFC 26(b)(3). “At its core, the work product doctrine shelters the mental processes of ... attorney[s], providing a privileged area within which [they] can analyze and prepare [their] client’s case.” United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975); see also Allen v.

Chicago Transit Auth., 198 F.R.D. 495, 500 (N.D.Ill.2001) (“Th[e] intent [of the work product doctrine] is to protect the adversarial process by providing an environment of privacy in which a litigator may creatively develop strategies, legal theories, and mental impressions outside the ordinary liberal realm of federal discovery provisions, thereby insuring that the litigator’s opponent is unable to ride on the litigator’s wits.”). However, the work product doctrine is not an absolute bar to discovery of materials prepared in anticipation of litigation.

Work product can be produced upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s ease and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation. RCFC 26(b)(3).

Thus, RCFC 26(b)(3) provides that, even if the party seeking discovery of information otherwise protected by the work product doctrine has made the requisite showing of need and undue hardship, courts must still protect against the disclosure of mental impressions, conclusions, opinions, or legal theories of an attorney and his agents.

Stated differently, [RCFC] 26(b)(3) establishes two tiers of protection: first, work prepared in anticipation of litigation by an attorney or his agent is discoverable only upon a showing of need and hardship; second, “core” or “opinion” work product that encompasses the “mental impressions, conclusions, opinion, or legal theories of an attorney or other representative of a party concerning the litigation” is “generally afforded near absolute protection from discovery.” Thus, core or opinion work product receives greater protection than ordinary work product and is discoverable only upon a showing of rare and exceptional circumstances.

In re Cendant Corp. Sec. Litig., 343 F.3d 658, 663 (3d Cir.2003) (citing, inter alia, In re Ford Motor Co., 110 F.3d 954, 962 n. 7 (3d Cir.1997)). “Like all privileges, the work product doctrine must be strictly construed.” Mims v. Dallas County, 230 F.R.D. 479, 484 (N.D.Tex.2005) (citing McCook Metals L.L.C. v. Alcoa, Inc., 192 F.R.D. 242, 260 (N.D.Ill.2000) (work product doctrine “significantly restricts the scope of discovery and must be narrowly construed in order to aid in the search for the truth”) and Republican Party of N.C. v.

Martin, 136 F.R.D. 421, 429 (E.D.N.C.1991) (same)); see also Allen, 198 F.R.D. at 500 (“Only by strictly construing the elements of work product, can the doctrine’s original intent be best served.”). “The burden is on the party who seeks work product protection to show that the materials at issue were prepared by its representative in anticipation of litigation or for trial.” Mims, 230 F.R.D. at 484 (citations omitted).

Once this initial burden is met, the party seeking discovery must establish a “substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” RCFC 26(b)(3). “[A]ny doubts, ambiguities, uncertainties, or silences as to the scope of the work product Rule should be resolved in favor of the Rules’ overall policy of liberal discovery.” Stout v. Ill. Farmers Ins. Co., 150 F.R.D. 594, 602 (S.D.Ind.1993), aff'd, 852 F.Supp. 704, 705 (S.D.Ind.1994). a.

In Anticipation of Litigation “The threshold determination in a case involving a claim of work product privilege is whether the material sought to be protected from discovery was prepared in anticipation of litigation” or was prepared in the ordinary course of business or for other purposes. Allendale Mut. Ins. Co. v.

Bull Data Sys., Inc., 145 F.R.D. 84, 86 (N.D.Ill.1992). “Documents created for other purposes that prove useful in subsequent litigation are not attorney work product; similarly, documents that are routinely prepared in the ordinary course of business are outside the scope of work product protection.” In re Gabapentin Patent Litig., 214 F.R.D. 178, 184 (D.N.J.2003); see also Nat’l Union Fire Ins. Co. v.

Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (“The document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation. Thus, we have held that materials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation within the meaning of Rule 26(b)(3).”); Gutter v. E.I. Dupont de Nemours & Co., No. 95-CV-2152, 1998 WL 2017926, at *3 (S.D.Fla.

May 18, 1998) (“Documents created for business reasons which ... were not intended to assist in prosecution or defense of a lawsuit, are not protected from discovery by the ... work product privileges.”) (citing In re Bairnco Sec. Litig., 148 F.R.D. 91 (S.D.N.Y.1993)). “Furthermore, the prospect of litigation may not be so remote as to be a ‘mere possibility.’” Weil Ceramics & Glass, Inc. v.

Work, 110 F.R.D. 500, 505 (E.D.N.Y.1986). “[T]he mere fact that a discovery opponent anticipates litigation does not qualify an ‘in-house’ document as work product.” Allen, 198 F.R.D. at 500. “It is often difficult to difficult to determine with precision when a particular attorney’s work is [developed] ‘in anticipation of litigation’ rather than ‘... in the ordinary course of business.’ ” Int’l Ins. Co. v. Certain Underwriters at Lloyd’s London, No. 88 C 9838, 1990 WL 205461, at *6 (N.D.Ill. Nov.27, 1990) (citing Janicker v. George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982)).

Because the phrase “in anticipation of litigation” “eludes precise definition,” there are “a variety of approaches and conflicting decisions in the case law.” Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 659 (S.D.Ind.1991); see also Allendale, 145 F.R.D. at 86 (“The determination of whether materials are prepared in anticipation of litigation ..., while central to the work product doctrine, eludes precision.”); United States v.

El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982) (“[W]e concede that determining whether a document is prepared in anticipation of litigation is a slippery task.”). “Under one approach, this determination requires an inquiry into ‘the primary motivational purpose behind the creation of the document.’ ” In re Raytheon Sec. Litig., 218 F.R.D. 354, 357 (D.Mass.2003) (quoting United States v. Gulf Oil Corp., 760 F.2d 292, 296 (Temp.Emer.Ct.App.1985)) (involving documents prepared on behalf of a company at the requirement of its auditors).

Under this approach, “if the primary motivating purpose behind the creation of the document is not to assist in pending or impending litigation, then a finding that the document enjoys work product immunity is not mandated.” Gulf Oil Corp., 760 F.2d at 296. Defendant urges the court to adopt this standard for determining whether a document was prepared “in anticipation of litigation,” and points out that this court has used “ ‘the primary motivating purpose’ standard to analyze whether a document was prepared in anticipation of litigation.” Def.’s Mot. at 7 (citing Cabot v.

United States, 35 Fed.Cl. 442, 445 (1996)). “Under a second approach, the work product doctrine protects a broader category of documents.” In re Raytheon Sec. Litig., 218 F.R.D. at 357. This approach is often termed the “because of’ standard, which states that “[wjhere a document was created because of anticipated litigation, and would not have been prepared in substantially similar form but for the prospect of that litigation, it falls within [the protections afforded by the work product doctrine].” United States v. Adlman, 134 F.3d 1194, 1195 (2d Cir.1998) (emphasis added).

In Adlman, the Second Circuit elaborated on the “because of’ approach: The formulation of the work-product rule used by the Wright & Miller treatise, and cited by the Third, Fourth, Seventh, Eighth, and D.C.

Circuits, is that documents should be deemed prepared “in anticipation of litigation,” and thus within the scope of the Rule, if “in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.” ... [I]t should be emphasized that the “because of’ formulation ... withholds protection from documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation.

It is well established that [the] work-product privilege does not apply to such documents. Even if such documents might also help in preparation for litigation, they do not qualify for protection because it could not fairly be said that they were created “because of’ actual or impending litigation.

Adlman, 134 F.3d at 1202 (internal citations omitted); see also In re Sealed Case, 146 F.3d 881, 884 (D.C.Cir.1998) (applying “because of’ test and noting that “for a document to meet this standard, the lawyer must at least have had a subjective belief that litigation was a real possibility, and that belief must have been objectively reasonable”); Logan v. Commercial Union Ins.

Co., 96 F.3d 971, 976-77 (7th Cir.1996) (applying “because of’ test and concluding that insurance claim documents requested by injured worker concerning how insurance company intended to defend against worker’s actions were created in anticipation of litigation and subject to work product protection); Nat'l Union Fire Ins. Co. v.

Murray Sheet Metal Co., Inc., 967 F.2d 980, 984 (4th Cir.1992) (“[Because] document must be prepared because of the prospect of litigation when the preparer faces an actual claim or a potential claim following an actual event or series of events that reasonably could result in litigation ... [,] materials prepared in the ordinary course of business or pursuant to regulatory requirements or for other non-litigation purposes are not documents prepared in anticipation of litigation”); Simon v. G.D.

Searle & Co., 816 F.2d 397, 401 (8th Cir.1987) (applying “because of’ test and concluding that, in contrast to individual ease reserve figures calculated by the defendant’s attorneys, aggregate risk management documents were not prepared in anticipation of litigation but rather constituted business planning documents); United States v. Rockwell Int'l, 897 F.2d 1255, 1266 (3d Cir. 1990) (applying “because of’ test). The “because of’ test has also been employed by this court. See Energy Capital Corp. v.

United States, 45 Fed.Cl. 481, 485 (2000) (“ ‘The initial inquiry is whether, in light of the nature of the documents and the factual situation in a particular ease, the document can be fairly said to have been prepared or obtained because of the prospect of litigation.’”) (quoting Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 434 (W.D.N.Y.1997)) (emphasis added). Regardless of whether a court uses the “primary motivating purpose” or the “because of’ approach, “documents that are required to be prepared to comply with the law may not be protected.” In re Raytheon Sec.

Litig., 218 F.R.D. at 359. Indeed, “[i]n limiting work product to materials prepared ‘in anticipation of litigation,’ the drafters of [RCFC] 26(b)(3) excluded from the rule’s protection ‘materials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other non-litigation purposes.’ ” Id. (quoting Fed.R.Civ.P. 26(b)

(3) Advisory Committee Note); see also Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1260-61 (3d Cir.1993) (citing advisory committee note); United States v.

Rockwell Int’l, 897 F.2d 1255, 1265-66 (3d Cir.1990) (noting language of advisory committee and directing district court on remand to determine with specificity the party’s primary motivation in creating and maintaining the tax accrual document at issue); El Paso, 682 F.2d at 544 (citing advisory committee notes and concluding that “written ultimately to comply with SEC regulations, the tax pool analysis carries much more the aura of daily business than it does of courtroom combat” and “are not protected work product materials”). “This exclusion from work product protection of materials assembled ‘pursuant to public requirements unrelated to litigation’ applies ‘even if the party is aware that the document may also be useful in the event of litigation.’” In re Raytheon Sec.

Litig., 218 F.R.D. at 359 (quoting Pacamor Bearings v. Minebea Co., 918 F.Supp. 491, 513 (D.N.H. 1996)). However, it is also true that this advisory committee note “indicates by implication that materials prepared pursuant to public requirements but related to litigation are protected.” Thomas Wilson, Note, The Work Product Doctrine: Why Have an Ordinary Course of Business Exception?, 1988 Colum. Bus. L.Rev. 587, 601 (1988) (emphasis added).

In any event, “[t]hese passages emphasize that the purpose for which a party created a document is the fundamental requirement of the Rule, and that when litigation is reasonably anticipated, certain, or even underway, a court must still undertake an examination of why a document was produced.” Harper, 138 F.R.D. at 661 (emphasis in original). b. “Litigation” The determination of what constitutes “litigation” for the purposes of the work product doctrine’s “in anticipation of litigation” formula is an extremely important one, especially in the context of this case.

The Restatement (Third) of the Law Governing Lawyers takes a broad view of what constitutes “litigation” for the purposes of the work product doctrine: Litigation includes civil and criminal trial proceedings, as well as adversarial proceedings before an administrative agency, an arbitration panel or a claims commission, and alternative-dispute-resolution proceedings such as mediation or mini-trial. It also includes a proceeding such as a grand jury or a coroner’s inquiry or an investigative legislative hearing.

In general, a proceeding is adversarial when evidence or legal argument is presented by parties contending against each other with respect to legally significant factual issues. Thus, an adversarial rulemaking is litigation for purposes of the immunity.

Restatement (Third) of the Law Governing Lawyers (Restatement) § 87 cmt. h (2000). “ ‘Adversarialness’ is the touchstone of this approach to the ‘litigation’ question, and a number of courts seem to have followed it to a large degree.” In re Grand Jury Subpoena, 220 F.R.D. 130, 147 (D.Mass.2004). “[T]he preferred approach gives protection only to those documents or portions of documents that were prepared principally to assist in anticipated adversarial proceedings.” Golden Trade, S.r.L. v. Lee Apparel Co., No. 90 Civ. 6291, 1992 WL 367070, at *4, 1992 U.S. Dist. LEXIS 17739, at *9 (S.D.N.Y.

Nov. 20, 1992); see also Willingham v. Ashcroft, 228 F.R.D. 1, 4 (D.D.C.2005) (stating that “litigation” includes “a proceeding in court or administrative tribunal in which the parties have the right to cross-examine witnesses or to subject an opposing party’s presentation of proof to equivalent disputation____ In other words, to constitute ‘litigation,’ the proceeding must be adversarial.”) (citation omitted); In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 924 (8th Cir.1997) (“Courts have applied work product immunity in a variety of legal contexts.

The essential element of each case, however, is that the attorney was preparing for or anticipating some sort of adversarial proceeding involving his or her client.”) (citations omitted); Jumper v. Yellow Corp., 176 F.R.D. 282, 285 (N.D.Ill.1997) (“The work-product doctrine only extends to communications made as part of the adversary process.”). c.

Case Law The court has reviewed numerous persuasive authorities that have considered whether the work product doctrine applies to protect from discovery documents similar in nature to those in dispute in this ease — namely, documents created in preparation for rate-setting, license, or permit application proceedings such as those before the CPUC, NRC, and CCC. As a general matter, “documents prepared in connection with routine administrative filings under the securities, tax, and other regulatory laws are ... held not to be covered by the work product exemption.” Biddison v. Chicago, No. 85 C 10295, 1989 U.S.

Dist. LEXIS 3991, at *2 (N.D.Ill. Feb. 3, 1989) (citing Gulf Oil Corp., 760 F.2d at 296 and In re Special Sept. 1978 Grand Jury, 640 F.2d 49, 65 (7th Cir.1980)). However, “[sjince administrative proceedings not infrequently lead to litigation, ... work product issues relating to documents prepared in connection with administrative filings frequently involve, close and difficult questions.” Biddison, 1989 U.S. Dist.

LEXIS 3991, at *2 (comparing Gulf Oil Corp., 760 F.2d at 296 (holding that documents prepared at an accountant’s request to allow the preparation of financial reports required by the federal securities laws are not protected by the work product privilege, while noting that “[t]he case presents a close question”) with Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 722 (5th Cir.1985) (documents prepared by accountant for the client’s use in “ ‘dealing with the IRS’ ... may well have been prepared in anticipation of an administrative dispute” and hence may constitute work product)).

In the securities regulation context, some courts have held that documents prepared for an independent auditor in connection with a publicly held corporation’s efforts to comply with the federal securities laws do not constitute attorney work product because they are created primarily for (or because of, depending on the standard used) the business purpose of preparing financial reports that would satisfy the requirements of the federal securities laws.

Gulf Oil Corp., 760 F.2d at 297; see also El Paso, 682 F.2d at 543-44 (finding that documents “written ultimately to comply with [Securities Exchange Commission (SEC)] regulations” were prepared “with an eye on its business needs, not on its legal ones” and do not “contemplate litigation in the sense required to bring it within the work product doctrine”); Indep. Petrochemical Corp. v. Aetna Cas. & Sur.

Co., 117 F.R.D. 292, 298 (D.D.C.1987) (declining to extend work product protection to audit letters prepared by an attorney where Magistrate Judge’s in camera examination of the letters revealed that they were not prepared to assist company in present or reasonably anticipated litigation but rather to assist accounting firm “in the performance of regular accounting work done by such accounting firms”); McEwen v.

Digitran Sys., Inc., 155 F.R.D. 678, 684 (D.Utah 1994) (after reviewing documents in camera, concluding that the defendants had not sustained the burden of proof that the documents were protected by the work product privilege because the “primary motivating purpose” behind the creation of the documents appeared to be to enable the re-issuance of defendants’s financial statements in order to relist its stock, not to assist attorneys in connection with pending or anticipated litigation).

The patent application process has also produced a number of helpful cases that carefully analyze what constitutes attorney work product created in anticipation of “litigation.” In McCook Metals L.L.C. v. Alcoa, Inc., 192 F.R.D. 242, 260 (N.D.Ill.2000), the Northern District of Illinois stated that [i]n th[e Seventh Circuit], preparation of a patent application for prosecution has generally not been held to be in anticipation of litigation, as it is primarily an ex parte administrative, not an adversarial, proceeding.

Specific items relating to the patent application process that were not deemed work product included decisions regarding which specifications to include in the patent application, decisions to use certain terms in the original patent application, and technical information from the client to attorney used for the purpose of preparing a patent application. However, documents produced in preparation for a patent reexamination proceeding when related litigation was subsequently initiated in the federal courts have been held to be made in anticipation of litigation, and thus protected by the work product doctrine.

In these cases, the court reasoned that, regardless of whether the reexamination proceeding was initiated by a competitor or the patent holder, “the reexamination proceeding is an adversarial proceeding, similar to ‘litigation[,]’[ ] to which the work product doctrine applies.” Documents prepared for an interference proceeding were also held to be protected. McCook, 192 F.R.D. at 260 (internal citations and quotations omitted).

Following this precedent, the McCook court compelled the production of documents created in preparation of defendant’s patent application, but ordered the protection of documents prepared in preparation for appeal to the Board of Patent Appeals and Interferences. Id. at 261. The court explained the adversarial nature of the latter proceedings that persuaded it to deem them “litigation” for the purposes of the work product doctrine: After the applicant, now called the appellant, has filed his notice of appeal, he has two months to file a brief on the appeal ... in which he must set forth his arguments.

The examiner then submits his answer to the appellant’s brief. The appellant may file a reply brief or a request for an oral hearing within one month of the filing of [the] Examiner’s answer. The Board of Patent Appeals and Interferences then arrives at a decision.

Th[is] reexamination proceeding, which has been held to constitute “litigation” for the purposes of the work product doctrine, is similar to the final appeals proceeding [before the Federal Circuit] in that although both are ex parte proceedings, neither is “nowhere nearly as non-adversarial and ex parte as is a typical application for initial issuance of a patent.” In both the appeal process and the reexamination proceedings, the patent applicant or holder is in a defensive position and in an adversarial relationship to the examiner.

Also, in both situations, the attorney is in the position of drafting intricate legal documents, neatly arranging raw technical facts into verbal packages, and practicing the art of a legal wordsmith to persuade the examiner to make a favorable finding for his client. As compared to the initial application request in which the applicant and the examiner are on fairly neutral grounds, the appeal proceeding and the reexamination proceeding force a heightened need of persuasiveness on the part of the attorney, and an increased level of adversity between the applicant and the examiner.

All of these are characteristics of litigation. The [c]ourt finds that an appeal before the Board of Patent Appeals and Interferences, although an ex parte proceeding, is of an adversarial nature sufficient to constitute “litigation[,]”[ ] thus[] warranting application of the work product doctrine to attorney materials made in anticipation thereof. This construction is further supported by the fact that the individual filing the patent application, previously referred to as applicant, is referred to as an appellant after the filing of a notice of appeal.

Of course, any appeal thereafter to the Federal Circuit or civil action before the District Court for the District of Columbia would also be protected by the work product doctrine. Id. at 261-262 (internal citations and quotations omitted). The Southern District of New York has taken a similar approach with respect to patent application proceedings: [Documents prepared in contemplation of ex parte proceedings before the [Patent and Trade Office (PTO) ] are not, on that basis alone, entitled to work-product protection.

In contrast, if a document is prepared in anticipation of or with an eye to future adversarial administrative proceedings or future litigation, it will be protected, subject of course to the discovering party’s ability to show a pressing need for the document. Under this approach, even if the document was prepared to address issues in an ex parte patent proceeding, any portions of it that explicitly address the prospect of future litigation or offer an analysis of issues principally pertinent to such a proceeding will be protected. Golden Trade, 1992 WL 367070, at *4, 1992 U.S. Dist.

LEXIS 17739, at *8-9 (citations omitted); accord In re Gabapentin Patent Litig., 214 F.R.D. at 184-85 (‘“Generally, work performed by an attorney to prepare and prosecute a patent does not fall within the parameters of the work product protection ... since the prosecution of [a] patent is a non-adversarial, ex parte proceeding. Thus, work done to that end is not “in anticipation of’ or [“jconcerning” litigation.

This rule does not, however, preclude application of the work product protection to work performed to prosecute a patent application if it was also p[er]formed in anticipation of or concerning litigation.’ ”) (quoting In re Mine-bea Co., 143 F.R.D. 494, 499 (S.D.N.Y.1992)). Many courts have analyzed the context of other types of administrative, regulatory, or investigative proceedings to determine whether documents created in preparation of these proceedings are protected under the work product doctrine.

In Biddison, the Northern District of Illinois ruled on “whether lawyers’ ‘work product,’ used in its generic sense, generated in the course of preparing an environmental impact statement [(EIS)], should be treated as protected work product.” Biddison, 1989 U.S. Dist. LEXIS 3991, at *1. The court found that under normal circumstances, a document generated in connection with the preparation of an EIS should not be treated as work product. The circumstances surrounding the preparation of the EIS in this case, however, counsel a different result.

A brief review of the history of this litigation demonstrates that the preparation of the EIS in this case was inextricably bound up with defendants’ defense of a seamless web of litigation, beginning before the preparation of the EIS and still going on. ... [T]he EIS at issue here was prepared as a result of litigation, and its approval was almost immediately challenged by litigation.... The EIS was little more than the bridge from one lawsuit to another. Biddison, 1989 U.S. Dist. LEXIS 3991, at *3-5.

Thus, because “[t]he EIS ... was prepared with the knowledge that litigation over the environmental impact of the planned ... expansion was a virtual certainty and that the EIS would be at the center of that litigation,” id. at *8, the court concluded that “attorney work product relating to the preparation of the EIS was in fact generated in anticipation of litigation and should be protected by the work product privilege,” id.

In In re Grand Jury Subpoenas dated March 9, 2001, 179 F.Supp.2d 270, 274 (S.D.N.Y.2001), the Southern District of New York, in connection with an investigation by the court into the circumstances surrounding the grant of presidential pardons, examined whether documents created by attorneys to assist their clients in obtaining those pardons could be withheld as protected attorney work product. The court found that “once [the clients] decided to seek presidential pardons, the [attorneys] ceased providing legal services in an adversarial context.

They faced no opposing parties or adversaries and the pardon proceedings were entirely ex parte.” Id. Thus, the court concluded that “the objections based on the work product doctrine ... are overruled.” Id. In Binks Manufacturing Co. v. National Presto Industries, Inc., 709 F.2d 1109, 1111 (7th Cir.1983), a contractual dispute arose between Binks, the manufacturer and seller of an “industrial spray finishing and baking system,” and Presto.

Binks sued Presto for the purchase price of the system, and Presto counterclaimed for damages resulting from defective design and manufacture of, and late delivery of, the system. Id. Prior to the litigation, there had been much negotiation between the parties regarding operational problems with the system. Id. at 1112. Binks had sent a letter to Presto, requesting full payment for the system’s purchase price. Id. at 1119. As a result, Lavers (a Presto in-house attorney) went to a Presto plant to interview employees about the system’s problems and to examine the equipment. Id. at 1113.

He later sent back memos and letters to Presto’s chief in-house counsel regarding these problems. Id. In one, he set forth a recommended strategy to be used in negotiations with Binks concerning these problems. Id. As a result of these memos and letters, Presto wrote Binks, indicating all of the problems seen, and advising that, unless the problems were taken care of, Presto would send its own experts to correct the problems, and withhold payments to “set off against our damages.” Id. at 1120.

Two of the letters or memos by Lavers were ordered produced by the lower court, over the work product objection of Presto. Id. at 1118. “The Seventh Circuit, in upholding the lower court’s ruling requiring production of these documents, stressed that in neither letter (by Binks or by Presto) were there any threats of, or expression of intent to institute, litigation.” Guardsmark, Inc. v. Blue Cross & Blue Shield, 206 F.R.D. 202, 207 (W.D.Tenn.2002) (citing Binks, 709 F.2d at 1119-20).

The Binks court concluded that, “while there may have been ‘the remote prospect of litigation’ when Lavers prepared his memoranda, [Presto] has failed to meet its burden of proving that the memoranda were ‘prepared ... because of the prospect of litigation,’ or, that ‘some articulable claim, likely to lead to litigation,’ had arisen.” Binks, 709 F.2d at 1120 (citation omitted); see also Janicker v.

George Washington U., 94 F.R.D. 648, 650 (D.D.C.1982) (“[T]he distinction between whether defendant’s ‘in house’ report was prepared in the ordinary course of business or was ‘work product’ in anticipation of litigation is an important one.

The fact that defendant anticipates the contingency of litigation resulting from an accident or event does not automatically qualify an ‘in house’ report as work product____ A more or less routine investigation of a possibly resistable claim is not sufficient to immunize an investigative report developed in the ordinary course of business.”) (citations omitted), cited with approval in Binks, 709 F.2d at 1119. In California ex. rel. Wheeler v. Southern Pacific Transportation Co., No. CIV S-92-1117 LKK GGH, 1993 WL 816066, at *4, 1993 U.S. Dist. LEXIS 21128, at *15 (E.D.Cal.

Sept.2, 1993), the Eastern District of California ruled on whether the plaintiff could properly assert work product protection over documents that were required to be created under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first noted that “well established case law has refused to protect that information which a party has acquired because of a public or business duty simply because a litigation involving that information is probable or in existence.” Id. at *4, 1993 U.S. Dist. LEXIS 21128, at *16.

The court continued: Cases deciding that documents were generated in the ordinary course of business or as a result of an independent duty, have all reached the conclusion that such reports will not receive work product protection. For example, in cases deciding that police reports were not protected by the work product doctrine, the court looked at whether the police investigation was made in anticipation of litigation or whether it was routine procedure.

Further, a medical examiner’s report which was prepared pursuant to an obligation to determine the cause of death, and in furtherance of his routine duties as a city employee, was held not to be in anticipation of litigation.... Id. at 4, 1993 U.S. Dist. LEXIS 21128, at *17 (internal citations and footnote omitted). Then, having determined that the plaintiff “had an independent duty to assess damages under CERCLA,” id. at *4, 1993 U.S.

Dis-triee LEXIS 21128, at *19, *26, the court concluded that the “assertion of a work product immunity is insufficient to overcome the regulatory scheme that calls for disclosure of the documents at issue,” id. at *8, 1993 U.S. Dist. LEXIS 21128, at *33; see also Goos-man v. A. Duie Pyle, Inc., 320 F.2d 45, 52 (4th Cir.1963) (declining to extend work product protection to documents because “[t]hey were made in the ordinary course of business under [Interstate Commerce Commission (ICC)] regulations and do not represent the lawyer’s work product within the holding in Hickman v. Taylor”).

In Jumper, the Northern District of Illinois analyzed whether documents prepared in anticipation of arbitration or grievance proceedings were protected under the work product doctrine. The court stated that “[c]ourts have found that the work product doctrine applies to documents prepared by or for a party in connection with arbitrations because arbitrations are adversarial in nature and can be fairly characterized as ‘litigation.’ ” 176 F.R.D. at 286.

Thus, because “[p]laintiff concedes that ‘the [parties] were adversarial to each other in the grievance proceeding,’ ” the court concluded “that the grievance proceedings here can be characterized as ‘litigation’ for purposes of the work product doctrine.” Id. The court therefore granted-in-part the defendant’s motion for a protective order.

Id. at 287; see also Willingham, 228 F.R.D. at 5 (allowing work product protection to documents prepared in anticipation of an administrative complaint, because “[w]hen plaintiff challenged the [Drug Enforcement Administration (DEA) ]’s decision to discipline her by appealing its decision to the [Merit Systems Protection Board (MSPB) ], she initiated an adversarial action against the agency.”); cf. Niagara Mohawk Power Corp. v.

Stone & Webster Eng’g Co., 125 F.R.D. 578, 586 (N.D.N.Y.1989) (“The work product doctrine has been held to protect documents prepared in anticipation of an administrative proceeding such as the Public Service Commission’s prudence proceeding.”); United States v. AT & T, 86 F.R.D. 603, 628 (D.D.C.1979) (“[A] routine Government administrative inquiry ... cannot fairly be described as anticipating litigation. ..:”). Finally, the court notes that there is a line of cases, similar to those discussed above, that describe the proper standard in analyzing “dual-purpose” documents. For example, in Soeder v.

General Dynamics Corp., 90 F.R.D. 253, 255 (D.Nev.1980), the District Court for the District of Nevada held that documents resulting from an aircraft manufacturer’s investigation into a crash of one of its planes did not qualify as work product because, in addition to preparing for litigation, the manufacturer had an “equally reasonable desire ... to protect future pilots and passengers of its aircraft, to guard against adverse publicity in connection with such aircraft crashes, and to promote its own economic interests by improving its prospect for future contracts for production of said aircraft.” Thus, the court found that the work product doctrine did not apply to these investigative documents.

Id. Similarly, in Stout, 150 F.R.D. at 604-05, the District Court for the Southern District of Indiana analyzed whether documents prepared by an insurer “for concurrent purposes before making a claims decision” should be protected under the work product doctrine. The court stated: We believe that the appropriate standard for evaluating dual-purposed documents to be[:] ... If a document or thing would have been created for non-litigation uses regardless of its intended use in litigation preparation, it should not be accorded work product protection.

Because the document would have been created for non-litigation reasons anyway, disclosure of the information therein would not disadvantage its creator, or advantage his opponent, by revealing the creator’s legal strategy or tactics; thus, the document’s release in discovery would not contravene the policies supporting the work product rule. There is no proprietary interest to protect, no threat to the orderly and fair administration of litigation, and no loss of incentive for attorneys or parties to creatively develop their eases.

Since neither the language nor purposes of the work product [r]ule would be contradicted by this standard, we are constrained to so narrowly construe it. Id.

Thus, the court “presume[d] that documents which were produced by an insurer for concurrent purposes before making a claims decision would have been produced regardless of litigation purposes and therefore do not constitute work product.” Id. at 605; see also Harper, 138 F.R.D. at 661 (“Because the work product rule does not prevent discovery of documents prepared for non-litigation purposes, it would be an unwarranted extension of that rule to prevent access to such a broad range of documents merely because of the inherent importance of such documents to several interests, one of which happens to be litigation.

The danger is surely slight that release of a document that is produced in the ordinary and regular course of a party’s business would reveal damaging litigation strategy of that party simply because such a document may also be helpful in litigation---Documents prepared for concurrent purposes, therefore, should not be classified as work product. Such an approach is consistent with the purposes of the work product rule and avoids the impossibility of weighing the asserted motives behind the creation of a document to determine which one is primary.”).

The Ninth Circuit has also examined whether the work product doctrine should be extended to such “dual-purpose” documents in In re Grand Jury Subpoena, 357 F.3d 900, 907 (9th Cir.2003). There, the court noted that, in addition to litigation contemplated as a result of the initiation of an EPA investigation, “some of [an investigator’s] documents were also prepared in compliance with the Information Request and the Consent Order, or were otherwise related to the cleanup of the CERCLA sites.” Id.

As to these documents, the court held that, “notwithstanding their dual purpose character, [they] fall within the ambit of the work product doctrine. The documents are entitled to work product protection because, taking into account the facts surrounding their creation, their litigation purpose so permeates any non-litigation purpose that the two purposes cannot be discretely separated from the factual nexus as a whole.” Id. at 909-10; cf. United States v.

Frederick, 182 F.3d 496, 501 (7th Cir.1999) (“[A] dual purpose document — a document prepared for use in preparing tax returns and for use in litigation — is not privileged; otherwise, people in or contemplating litigation would be able to invoke, in effect, an accountant’s privilege, provided that they used their lawyer to fill out their tax returns.”). 2.

Analysis The potentially analogous authorities summarized above provide a context for and inform the court’s decision as to whether documents created in preparation for rate-setting, license, or permit application proceedings such those before the CPUC, NRC, and CCC can or should be protected from discovery under the work product doctrine.

The court seeks to avoid the necessity of briefing specific to, and in camera review of, each individual document sought to be protected by providing guidance to the parties as to the court’s view of the types of documents that are protected in this context as documents created “in anticipation of litigation” under the work product doctrine.

As an initial matter, the court does not find it necessary to decide here whether the “primary motivating purpose” or the “because of’ approach is the correct application of RCFC 26(b)(3), because the court’s final determination in this discovery dispute does not turn on which standard is used. In any event, the court notes that under either formulation, “documents that are prepared in the ordinary course of business or that would have been created in essentially similar form irrespective of the litigation” are not protected. Adlman, 134 F.3d at 1202.

Generally, the court is guided by the proposition that “the purpose for which a party created a document is the fundamental requirement of the Rule, and that when litigation is reasonably anticipated, certain, or even underway, a court must still undertake an examination of why a document was produced.” Harper, 138 F.R.D. at 661 (emphasis in original). a.

Adversarial Aspects of CPUC and NRC Proceedings Constitute “Litigation” for the Purposes of the Work Product Doctrine, but CCC Proceedings do Not Before addressing whether the “purpose[s] for which [plaintiff] created a document” warrant protection of that document under the work product doctrine and describing what kinds of documents the court considers to be prepared “in anticipation of litigation” in this context, the court must in the first instance determine whether rate-setting, license, or permit application proceedings before the CPUC, NRC, or CCC, or any aspects of such proceedings, constitute “litigation” for the purposes of the work product doctrine.

To make this determination, the court reviews the parties’ descriptions of these proceedings as well as authorities identified by the court in its research in order to analogize each type of proceeding to the various administrative contexts analyzed in the potentially analogous case law the court has reviewed. CPUC proceedings are proceedings in which general rates for utility company customers are established. Plaintiff points out that “[t]he CPUC has characterized general rate proceedings as litigation.” Pl.’s Resp. at 5 (citing In re Application of Pac. Gas & Elec. Co., 2004 WL 1376593 (Cal. P.U.C.

May 27, 2004) (referring to issues “litigated” in a general rate case)). Moreover, “[t]he witness supporting [any] testimony [submitted] is then subject to cross-examination at the hearing.” Id. at 6. Plaintiff points to “numerous instances of PG & E witnesses being cross-examined by interested parties at general rate case hearings.” Id. (citing Pl.’s Resp. Ex. B at 1780 (transcript of cross-examination of PG & E witness Thomas LaGuardia by Armando Alvarez, representing the “consumer interests of the Federal Executive Agencies”)).

In addition, plaintiff argues that “[t]he CPUC’s decommissioning triennial cost proceedings also constitute litigation in that the CPUC issues findings of fact and conclusions of law after reviewing briefs and conducing hearings that include[] the presentation of testimony and exhibits and the cross-examination of witnesses.” Id. (citing In re S. Cal. Edison Co., 2003 WL 22426989 (Cal.P.U.C. Oct.2, 2003)). Finally, plaintiff explains that third parties to CPUC proceedings are entitled to and often choose to intervene, creating contentious, adversarial proceedings.

Interveners often submit interrogatories and data requests, requiring PG & E to prepare extensive and detailed responses ____ Draft documents such as [these responses] relating to general rate case[s] and decommissioning cost triennial proceedings were prepared in anticipation of those litigation matters, and as such, are protected from disclosure by the work product doctrine. Id. (citing, inter alia, Cal.Code Regs. tit. 20, § 54 (2005)). NRC proceedings relate to plaintiffs license to operate its nuclear power plants.

As to proceedings before the NRC, plaintiff states that “PG & E’s submission of an application to amend its license initiates an adjudicatory proceeding that provides interested parties with the opportunity to participate in a hearing.” Id. (citing, inter alia, 10 C.F.R. §§ 2.101(f)(1) and 2.315 (2005)). Plaintiff also notes that “[a]t a hearing concerning a licensee-initiated application to amend its license, the applicant has the right to present evidence and rebuttal testimony and to cross-examine witnesses.” Id. at 7 (citing 10 C.F.R. § 2.711).

It also appears that the applicant’s witnesses are subject to cross-examination by another party to the hearing, if any. See 10 C.F.R. § 2.711. Finally, “NRC specifically recognizes the applicability of the work product doctrine and privileges to its proceedings.” Pl.’s Resp. at 7 (citing 10 C.F.R. § 2.705(b)(1) and (3)). CCC proceedings relate to plaintiffs obtaining a permit to build on coastal property for its business.

With respect to CCC permit proceedings, plaintiff states that they “provide for a public hearing on the permit application ... [which] contemplates testimony by interested parties and rebuttal testi-mony____ Thus, PG & E’s decision to file a permit application ] initiates a hearing process that is adversarial” and documents created in preparation of such a hearing should be protected by the work product doctrine. Id. Defendant does not attempt to address, let alone rebut, these descriptions of CPUC, NRC, and CCC proceedings as “litigation” for the purposes of the work product doctrine.

See Def.’s Reply at 6 (“The Government does not deny that there may be litigation associated with these proceedings.”). Defendant merely states that “[t]he test is not whether there may be litigation associated with the submission of documents to regulatory entities, but rather whether the documents were prepared primarily for litigation or alternatively, for some business reason.” Id. This statement ignores the crux of plaintiffs argument: that the proceedings themselves are litigation, and therefore documents created in anticipation of them are protected from discovery under the work product doctrine.

Indeed, defendant fails to address plaintiffs argument that these documents were prepared solely in anticipation of the various administrative proceedings. The government argues that these documents had multiple purpose[s] ... because PG & E’s real interest was the underlying rates or licenses that are the subject of the proceedings. But this argument is too broad. No plaintiff engages in litigation for the litigation itself. Even here, PG & E’s ultimate objective is obtaining a damages recovery, not engaging in litigation.

Nor can the government properly distinguish between a public utilities commission rate case filing or licensing application and the administrative litigation over such filings and applications. Those filings are akin to complaints in litigation before this [c]ourt. The subsequent litigation is all part of a single litigation proceeding. Pl.’s Resp. at 8. Even if not addressed by defendant, plaintiffs argument must be evaluated.

Plaintiffs analogy — comparing license and permit application proceedings to litigation such as that in this case — has the appeal of an easy and universally applicable solution to the current dispute, but it ultimately fails to convince. In order to attempt to achieve its “ultimate objective [of] obtaining a damages recovery” here, plaintiff had to file a complaint against the United States Government, the opponent from which it seeks to obtain a damages recovery.

The “ultimate objective” of this litigation, therefore, is adversarial — to win damages from an opposing party against whom plaintiff has served a complaint. There would be no “litigation,” nor would this court have jurisdiction, without an adversarial claim against plaintiffs opponent, the United States Government. By contrast, in a license or permit application proceeding or a public utilities rate case, the “ultimate objective” is not adversarial — rather, it is to set rates with or obtain a license or permit from a regulatory body in order to advance the applicant’s business or comply with regulations.

In a license or permit filing, plaintiff does not file a complaint against an opponent, but rather files an application for the license or permit with a neutral regulatory commission. Therefore, the court disagrees that filings before these administrative proceedings “are akin to complaints in litigation before this [e]ourt.” Pl.’s Resp. at 8. The question remains, however, whether these administrative proceedings, or some aspects thereof, may constitute “litigation” for the purposes of the work product doctrine. The purpose of these proceedings is not adversarial, as it is in traditional litigation.

But, as illustrated by plaintiff in its briefing, see Pl.’s Resp. at 5-7, adversarial parties have the opportunity to intervene and cross examination and rebuttal testimony may be heard in some of these proceedings, creating an environment potentially akin to the adversarial litigation in which the work product doctrine is intended to be applied. Cf.

Restatement § 87 cmt. h (“In general, a proceeding is adversarial [and thus constitutes ‘litigation’ under the work product doctrine] when evidence or legal argument is presented by parties contending against each other with respect to legally significant factual issues.”).

The court must therefore determine which of these proceedings, or which aspects of each of them, do in fact constitute “litigation.” The CPUC’s website provides: A General Rate Case [ (GRC) ] is the major regulatory proceeding for California utilities, which provides the CPUC an opportunity to perform an exhaustive examination of a utility’s operations and costs.

Typically performed every three years, the GRC allows the CPUC to conduct a broad and detailed review of a utility’s revenues, expenses, and investments in plant and equipment to establish an approved revenue requirement. http://www.cpuc.ca.gov/efaqs/generalratecase grc.htm (last visited Jan. 15, 2006). Thus, the purpose of a GRC before the CPUC is “to establish an approved revenue requirement.” Similarly, it appears that the purpose of the CPUC’s decommissioning triennial cost proceedings “is to set the annual revenue requirements for ... decommissioning ... for nuclear power plants.” In re So. Cal.

Edison Co., 2003 WL 22426989 (Cal. P.U.C. Oct.2, 2003), cited in Pl.’s Resp. at 6. Thus, the purpose and inherent nature of these proceedings before the CPUC is not adversarial; rather, their purpose is to establish revenue requirements, a necessary part of the ordinary business of a public utility company, working with its regulator to establish accurate rates and revenues. However, plaintiff states, and defendant does not dispute, that “third parties to CPUC proceedings are entitled to and often choose to intervene, creating contentious, adversarial proceedings.” Pl.’s Resp. at 6. Indeed,

section 52(

b) of Title 20 of the California Code of Regulations states that “[wjhenever any electrical, gas, ... or sewer system utility files an application to increase any rate, the utility shall give notice of hearing, not less than five nor more than 30 days before the date of hearing, to entities or persons who may be affected thereby____” These “entities or persons who may be affected” then have an opportunity to intervene: “In a complaint proceeding petitions to intervene and become a party” will be heard by the presiding officer, and “[i]f leave is granted, the petitioner thereby becomes an intervener and a party to the proceeding to the degree indicated by the order allowing intervention, or by the presiding officer at the hearing.” Cal.Code Regs. tit. 20, § 53.

In addition, the sole provision of the California Code of Regulations cited by plaintiff states: In an investigation or application proceeding ..., an appearance may be entered at the hearing without filing a pleading, if no affirmative relief is sought, if there is full disclosure of the persons or entities in whose behalf the appearance is to be entered, if the interest of such persons or entities in the proceeding and the position intended to be taken are stated fairly, and if the contentions will be reasonably pertinent to the issues already presented and any right to broaden them unduly is disclaimed.

A person or entity in whose behalf an appearance is entered in this manner becomes a party to and may participate in the proceeding to the degree indicated by the presiding officer. Cal.Code. Regs. tit. 20, § 54. Moreover, if the intervention is adversarial and “[i]f the Commission or the presiding officer is of the opinion that the complexity or importance of the issues so warrant, the Commission or the presiding officer may direct or permit the presentation of oral argument.” Cal.Code. Regs. tit. 20, § 76.

Thus, proceedings before the CPUC can, in some circumstances, resemble “litigation.” However, it is also true that initial filings for these proceedings, and any evidence presented or testimony provided to the CPUC thereafter in order accurately to set rates and revenues, can take the form of “primarily ex parte administrative, not ... adversarial, proceeding^].” McCook, 192 F.R.D. at 260.

Indeed, it appears to the court from the briefing before it that, much like an applicant in a patent application proceeding, an applicant seeking to set rates and the presiding officer “are on fairly neutral grounds.” Id. at 262. And it is entirely possible that an applicant may “face[ ] no opposing parties or adversaries” such that the “proceedings [are] entirely ex parte.” In re Grand Jury Subpoenas dated March 9, 2001, 179 F.Supp.2d at 274.

Even when another party does intervene in these proceedings before the CPUC, it is simply “participat[ing] in the proceeding to the degree indicated by the presiding officer,” see Cal.Code. Regs. tit. 20, § 54, and the purpose of the intervention may not be entirely adversarial, if at all. Given this, and that the ultimate goal of such proceedings is not adversarial but rather accurately to set rates and revenues as required by the CPUC, the court does not believe it would serve the purposes of the work product doctrine to provide the blanket label of “litigation” to every aspect of these proceedings. Cf.

In re Grand Jury Subpoena, 220 F.R.D. at 147 (“ Adversarialness’ is the touchstone of this approach to the ‘litigation’ question, and a number of courts seem to have followed it to a large degree.”). Instead, only those aspects of proceedings before the CPUC that are truly adversarial should be treated as “litigation” for the purposes of the work product doctrine.

With regard to licensing proceedings before the NRC, Title 10, § 2.101 of the Code of Federal Regulations sets forth the procedures for filing “an application for a license, a license transfer, or an amendment to a license ... with the Director of the Office of Nuclear Reactor Regulation or Director of the Office of Nuclear Material Safety and Safeguards.” The applicable provisions of § 2.101 state, in pertinent part: (a)(1) ... A prospective applicant may confer informally with the NRC staff prior to the filing of an application. (a)

(2) Each application for a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee will be assigned a docket number. However, to allow a determination as to whether an application for a construction permit or operating license for a production or utilization facility is complete and acceptable for docketing, it will be initially treated as a tendered application.

A copy of the tendered application will be available for public inspection at the NRC Web site, http://www.nrc.gov, and/or at the NRC Public Document Room. Generally, the determination on acceptability for docketing wdll be made within a period of thirty (30) days. (f)

(1) Each application for construction authorization for a [High-level radioactive waste (HLW) ] repository at a geologic repository operations area ..., and each application for a license to receive and possess high-level radioactive waste at a geologic repository operations area ..., and any environmental statement required in connection therewith ... shall be processed in accordance with the provisions of this paragraph. (f)

(5) If a tendered document is acceptable for docketing, the applicant will be requested to submit to the Director of Nuclear Material Safety and Safeguards such additional copies of the application and environmental impact statement as the regulations ... require____ (f)

(8) The Director of Nuclear Material Safety and Safeguards will cause to be published in the FEDERAL REGISTER a notice of docketing which identifies the State and location at which the proposed geologic repository operations area would be located and will give notice of docketing to the governor of that State. The notice of docketing will state that the Commission finds that a hearing is required in the public interest, prior to issuance of a construction authorization____ (

g) Each application for a license to receive radioactive waste from other persons for disposal ... shall be processed in accordance with the provisions of this paragraph. (g)(l)(

i) Upon receipt of a tendered application, the Commission will publish in the FEDERAL REGISTER notice of the filed application and will notify the governors, legislatures and other appropriate State, county, and municipal officials and tribal governing bodies of the States and areas containing or potentially affected by the activities at the proposed site and the alternative sites. The Commission will inform these officials that the Commission staff will be available for consultation pursuant to § 61.71 of this chapter.

The FEDERAL REGISTER notice will note the opportunity for interested persons to submit views and comments on the tendered application for consideration by the Commission and applicant. 10 C.F.R. § 2.101 (2005). Much like the CPUC proceedings described above, these NRC application proceedings are not initiated against another party for adversarial purposes, but rather for the purpose of obtaining “a license for a facility or for receipt of waste radioactive material from other persons for the purpose of commercial disposal by the waste disposal licensee.” 10 C.F.R. § 2.101(a)(2).

Again, however, plaintiff indicates, and defendant does not dispute, that “PG & E’s submission of an application to amend its license initiates an adjudicatory proceeding that provides interested parties with the opportunity to participate in a hearing.” Pl.’s Resp. at 6 (citing 10 C.F.R. §§ 2.101(f)(1) and 2.315). Moreover, “the NRC specifically recognizes the applicability of the work product doctrine and privileges to its proceedings.” Id. at 7 (citing 10 C.F.R. § 2.705(b)(1) and (3)).

Nevertheless, as with CPUC proceedings, the court declines to find that the work product doctrine should apply to all aspects of an NRC licensing proceeding such that an NRC licensing proceeding is generally and always “litigation” for the purposes of the work product doctrine. Indeed, in no sense is an NRC license applicant “in a defensive position and in an adversarial relationship to” the NRC. Cf. McCook, 192 F.R.D. at 262. Instead, an applicant and the NRC “are on fairly neutral grounds.” See id.; cf.

Will-ingham, 228 F.R.D. at 5 (allowing work product protection to documents prepared in anticipation of an administrative complaint because, “[wjhen plaintiff challenged the DEA’s decision to discipline her by appealing its decision to the MSPB, she initiated an adversarial action against the agency”). Moreover, outside participants who are not parties may only make a “limited appearance by making an oral or written statement of his or her position on the issues.” 10 C.F.R. § 2.315(a).

Thus, because the purpose of NRC license application proceedings is not adversarial, and the inherent nature of these proceedings is largely ex parte, the court believes it prudent to find that only those aspects of these proceedings that are truly adversarial should constitute “litigation” for the purposes of the work product doctrine. With regard to CCC permit application proceedings, Title 14,

Section 13066 of the California Coastal Regulations provides guidance to the court as to the nature of the proceedings: The commission’s public hearing on a permit application shall, unless the chairperson directs otherwise, proceed in the following order: (

a) The executive director shall make a presentation to the commission identifying the application, describing the project, and summarizing the staff recommendation, including the proposed findings, proposed conditions, and written correspondence received prior to the public hearing. (

b) The public testimony portion of the public hearing shall proceed in the following order:

(1) Persons or their representatives desiring to state their views on the application shall have the opportunity to do so as follows: (

A) The applicant; (

B) Other persons supporting the application; (

C) Persons opposing the application; (

D) Other persons.

(2) The chairperson may allow rebuttal testimony by the applicant in accordance with Public Resources Code

section 30333.1(a).

(3) The executive director may respond to and comment, as appropriate, on the testimony presented by any previous speaker.

(4) The chairperson may close the public testimony portion of the public hearing when a reasonable opportunity to present all questions and points of view has been allowed. (

c) Questions by commissioners will be in order at any time following any person’s presentation. (

d) At the conclusion of the public testimony portion of the public hearing, the executive director may propose to change the staff recommendation or the commission may propose to add, delete, or modify the conditions contained in the staff recommendation. The applicant and the executive director shall have an opportunity to comment briefly and specifically on any proposed change. (

e) The commission shall vote on a permit application in accordance with

section 13090. Cal.Code Regs. tit. 14, § 13066. While it is true that “CCC permit proceedings ... provide for a public hearing on the permit application,” Pl.’s Resp. at 7, with an opportunity for “[pjersons opposing the application” to submit public testimony, Cal. Code Regs. tit. 14, § 13066(b)(1)(C), again, the purpose and nature of these proceedings is not adversarial. Nor does the court have any indication whether opposition frequently occurs, or if plaintiff ever faced opposition. The court finds that proceedings before the CCC least resemble “litigation” for the purposes of the work product doctrine.

These proceedings seem to the court to be “primarily ex parte administrative, not ... adversarial, proceeding[s].” McCook, 192 F.R.D. at 260. Thus, the court ORDERS that any documents otherwise not privileged and created in anticipation of permit application proceedings before the CCC be produced to defendant. b.

Guidance as to What Constitutes “In Anticipation of Litigation” in the Context of CPUC and NRC Proceedings Having determined that only the truly adversarial aspects, if any, of proceedings before the CPUC and NRC constitute “litigation” for the purposes of the work product doctrine, and that CCC permit proceedings do not constitute “litigation,” the court turns to provide guidance to the parties as to what kinds of documents created in preparation of the CPUC and NRC proceedings were created “in anticipation of litigation” and therefore may be protected from discovery under the work product doctrine.

The fundamental inquiry that must be made is “the purpose for which a party created a document.” Harper, 138 F.R.D. at 661. Indeed, even when opposition or intervening adversarial parties have become involved in these proceedings, “a court must still undertake an examination of why a document was produced.” Id.

Documents created by plaintiff “in the ordinary course of business or that would have been created in essentially similar form irrespective of’ the potential adversarial aspects of these proceedings (the aspects here deemed “litigation”) before the CPUC or NRC are not protected by the work product doctrine. Adlman, 134 F.3d at 1202; see also Stout, 150 F.R.D. at 604 (“If a document or thing would have been created for non-litigation uses regardless of its intended use in litigation preparation, it should not be accorded work product protection.”).

The court now provides analyses of various documents listed in plaintiffs Revised Privilege Log for the purpose of permitting the parties to analogize these examples to disputed documents not mentioned in this Opinion and thereby to resolve any further discovery disputes involving the work product doctrine that they may have. Document Nos. 14 and 83, and those like them, should be produced because such documents appear not to have been created in response to or in anticipation of the adversarial aspects of NRC licensing proceedings, if any.

Rather, they appear to be prepared by plaintiff “with an eye on its business needs, not on its legal ones,” and do not “contemplate litigation in the sense required to bring [them] within the work product doctrine.” El Paso, 682 F.2d at 543; accord In re Gabapentin Patent Litig., 214 F.R.D. at 184-85 (“ ‘Generally, work performed by an attorney to prepare and prosecute a patent does not fall within the parameters of the work product protection ... since the prosecution of [a] patent is a non-adversarial, ex parte proceeding.

Thus, work done to that end is not “in anticipation of’ or [“]coneern-ing” litigation.’ ”) (quoting In re Minebea Co., 143 F.R.D. at 499). Document No. 155, and those like it, although consisting of “draft, handwritten ... testimony,” should not be protected by the work product doctrine if such drafts would have been prepared irrespective of the potential adversarial aspects of a GRC before the CPUC.

Providing testimony is necessary in these primarily ex parte proceedings in order to “establish an approved revenue requirement,” http://www.cpue.ca.gov/cfaqs/general-rateeasegrc.htm (last visited Jan. 15, 2006), and this testimony is likely to be given whether or not intervening or opposing parties are involved.

Thus, it appears to the court that “while there may have been ‘the remote prospect of litigation’ when” plaintiff prepared this draft testimony, plaintiff “has failed to meet its burden proving that the [drafts] were ‘prepared ... because of the prospect of litigation,’ or, that ‘some articula-ble claim, likely to lead to litigation,’ had arisen.” See Binks 709 F.2d at 1120 (citations and quotations omitted) (emphases in original).

Document Nos. 92-101, 212-228, 764, and 770, and those like them, should not be protected under the work product doctrine because they appear to consist of documents created in preparation for a filing, not for a “litigation” as the court has defined it here.

Such preparatory documents are not created in anticipation of “initiating] an adversarial action against” another party or agency, Willingham, 228 F.R.D. at 5 (emphasis added), but rather are created in anticipation of filing to apply for a license or to set rates in the ordinary course of business or pursuant to regulatory requirements or ex parte requests from an agency, irrespective of any adversarial aspects of the proceedings that may potentially arise.

These documents cannot be described as those whose “litigation purpose so permeates any non-litigation purpose that the two purposes cannot be discretely separated from the factual nexus as a whole.” In re Grand Jury Subpoena, 357 F.3d at 910. Their preparation was not “inextricably bound up with ... a seamless web of litigation, beginning before the[ir] preparation ... and still going on.” Biddison, 1989 U.S. Dist.

LEXIS 3991, at *3; see also Harper, 138 F.R.D. at 661 (“The danger is surely slight that release of a document that is produced in the ordinary and regular course of a party’s business would reveal damaging litigation strategy of that party simply because such a document may also be helpful in litigation.”).

Document No. 722, and those like it, should not be protected under the work product doctrine because it appears to the court that this document “would have been created in essentially similar form irrespective of the litigation” as the court has defined it here, Adlman, 134 F.3d at 1202, and was not created either “because of,” or with a “primary motivating purpose” to assist in, the potential adversarial aspects of CPUC proceedings, but instead “to address issues in an ex parte ... proceeding.” Golden Trade, 1992 WL 367070, at *4, 1992 U.S. Dist. LEXIS 17739, at *9.

Document Nos. 707-710, and those like them, should not be protected under the work product doctrine, unless the “[h]and-written [n]otes” have to do with strategy or tactics with respect to adversarial aspects of proceedings before the NRC.

Otherwise, the court finds that these notes are more akin to the [s]pecific items relating to the patent application process that were not deemed work products which] included decisions regarding which specifications to include in the patent application, decisions to use certain terms in the original patent application, and technical information from the client to attorney used for the purposes of preparing a patent application. McCook, 192 F.R.D. at 260; cf.

Janicker, 94 F.R.D. at 650 (“[T]he distinction between whether defendant’s ‘in house’ report was prepared in the ordinary course of business or was ‘work product’ in anticipation of litigation is an important one.

The fact that defendant anticipates the contingency of litigation ... does not automatically qualify an ‘in house’ report as work product____ A more or less routine investigation of a possibly resistable claim is not sufficient to immunize an investigative report developed in the ordinary course of business.”) (citations omitted). “In-house” documents created in preparation to file for or submit accurate information during these administrative proceedings are not work product under RCFC 26(b)(3).

See Allen, 198 F.R.D. at 500 (“the mere fact that a discovery opponent anticipates litigation does not qualify an ‘in-house’ document as work product.”). On the other hand, Document Nos. 110-113, and those like them, should be protected under the work product doctrine, as long as the “strategy” referred to is related to foreseen adve

[…]