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Procedural Order No. 8 on Document Production Regarding the Parties' Respective Claims to Privilege and Privilege Logs

I. Introduction

1.
Pursuant to Paragraph 14.2.7(v) of the First Procedural Order, the Claimants and the Respondent submitted to the Tribunal on 15 March 2013 disputes under their respective requests for document production for decision by the Tribunal as set out in their respective schedules (the “March Schedules”), such decision to be issued on 29 March 2013 in accordance with the procedural time-table fixed by Paragraph 14.2.7(vi) of the First Procedural Order.
2.
On 29 March 2013, the Tribunal issued its Procedural Order with regard to the Parties’ respective requests for document production in these arbitration proceedings (the “March Order”).
3.
The Tribunal there decided (inter alia) that as regards the privilege or privileges invoked or to be invoked by the Claimants and the Respondent, each side should prepare a privilege log identifying, by reference to any ordered document or (if not an identified document) any narrow and specific category of documentation, the particular privilege invoked by that side in relation to such document or documentation.
4.
The Tribunal also decided that the requesting Party should have an opportunity to respond in writing to such privilege log, with the responding Party being afforded a brief opportunity to reply to such response, also in writing.
5.
The Tribunal further requested the Parties to consult amongst themselves with a view to agreeing upon a time-table for the exchange of these privilege logs, further submissions and certifications.
6.
On 26 April 2013, the Parties informed the Tribunal that they had agreed upon an approach to complete the procedure for document production, as well as a time-table for the exchange of privilege logs, further submissions and certifications. The Parties further agreed upon a time-table that they proposed to the Tribunal with dates remaining to be fixed. The Parties confirmed that the remainder of the procedural time-table (including the hearing dates), as fixed in paragraph 14.2.7 of the First Procedural Order would remain unchanged.
7.
On 30 April 2013, the Tribunal accepted the Parties’ proposal of 26 April 2013. On 10 May 2013, the Parties informed the Tribunal of the agreed time-table and jointly requested the Tribunal to reflect that time-table in a procedural order.
8.
On 13 May 2013, the Tribunal formalised the agreed time-table as procedural order, issued to the Parties on 14 May 2013 (the “May Order”).
9.
As provided in the May Order, the Claimants filed on 24 May 2013 their Reply on the Merits and Counter-Memorial on Jurisdiction, addressing all documents produced on or before 19 April 2013.
10.
On 28 May 2013, the Parties exchanged certifications (with copies to the Tribunal) that the tests for relevance and materiality under Articles 3(3)(b) and 9(2)(a) of the International Bar Association’s Rules on the Taking of Evidence 2010 (the “IBA Rules”) had been applied to documents not produced by the responding Party.
11.
On 11 June 2013, the Parties simultaneously exchanged their replies to objections to privilege and provided such completed privilege logs to the Tribunal. Each privilege log was accompanied by a letter dated 11 June 2013. For ease of reference, the Claimants’ completed log is here attached as “Annex A” and the Respondent’s completed log as “Annex B” (neither with legal materials also supplied by the Parties), both such logs forming part of this procedural order. If and to the extent that full publication of this Order causes concern for any Party, the Tribunal will consider upon further consideration with the Parties redacting for publication any appropriate part of this Order’s text.
12.
Having considered the Parties’ respective logs, letters dated 11 June 2013 and attached materials, the Tribunal makes the following procedural order in regard to the Parties’ respective assertions of privilege regarding the documentation ordered by the Tribunal in its March Order. This Order requires several preliminary explanations, as follows.
13.
First, as decided in Paragraph 15.1 of the First Procedural Order, the Tribunal takes account of Articles 3 and 9 of the IBA Rules as an additional general guide to the exercise of its discretion under Article 41(2) of the ICSID Arbitration (Additional Facility) Rules, forming part of the Parties’ Arbitration Agreement.
14.
Second, in Paragraph O of its March Order, the Tribunal decided that it was not minded to take into account deliberative process privilege, attorney-client privilege, attorney work-product doctrine privilege (or any other privilege or like impediment) as a matter of any applicable national law or rules of law, but rather as one or more factors falling within Article 9(2) of the IBA Rules. The Tribunal continues here to apply this general principle to the Parties’ present dispute over document production.
15.
Third, the Tribunal is conscious that both sides have undertaken the exercise of document production generally and the assertion of privilege specifically by engaging professional lawyers in the private and public sectors, owing a personal duty to their legal profession and also to this Tribunal within these arbitration proceedings. This exercise is required to be performed, of necessity, in a responsible and non-partisan manner; it is essentially (but not entirely) self-regulating; and in these arbitration proceedings the Tribunal is confident that the legal advisers for both sides have conducted themselves hitherto responsibly and with good faith in the performance of these duties. Of course, in the event that any party to an arbitration (whether by itself or by its legal representatives or advisers) should act irresponsibly, an arbitral tribunal may draw adverse inferences against that delinquent party at any time.
16.
Fourth, this Tribunal considers that the Parties’ invocation of privilege in these arbitration proceedings relates not only to the non-production by the responding Party to a request for document production but also as a bar to the admission of such documentation into evidence by the requesting Party. Accordingly, the Tribunal being a final judge of factual issues in these arbitration proceedings, it is inappropriate for the Tribunal to examine for itself, ex parte, any document or part of a document for which privilege is invoked by a responding Party, quite apart from any question of due process. The Tribunal has considered appointing an independent and impartial referee to examine the disputed documents and redactions under Article 3(9) of the IBA Rules or its inherent procedural powers (such a referee would not suffer from the same predicament as the Tribunal); but, from concerns as to efficiency, time and cost, the Tribunal decided not to take that particular path in regard to this Order.
17.
With these general explanations, it is appropriate next to address each of the Parties’ privilege logs in turn, beginning with the Claimants.

II. The Claimants’ Privilege Log

18.
The Claimants invoked two forms of privilege to exclude the 353 documents enumerated in their privilege log: (i) attorney-client privilege as to 41 documents and (ii) work product doctrine as to all 353 documents. These documents comprise emails, letters, excel sheets, reports, memoranda and presentations exchanged between the Claimants, their Counsel (Buc & Beardsley, LLP which became Zuckerman Spaeder LLP, here the “Regulatory Counsel”) and their independent consultants on Current Good Manufacturing Practices or “cGMP” (Jeff Yuen & Associates and Paul Vogel Consulting Services LLC, together here the “Consultants”).
19.
The Parties do not dispute that these two privileges fall within the IBA Rules. Their views diverge as to whether certain of the communications with the Consultants and the Regulatory Counsel and also certain other documents created by the Consultants fall in fact under the protection of either of these privileges.
20.
In this respect, the Tribunal notes that the Parties have relied heavily upon United States legal sources to support their legal arguments. The Respondent also cites Article 9(3)(c) of the IBA Rules,1 which provides that the Tribunal may take into account the expectations of the parties in assessing privilege.2 The Respondent refers to the commentary on the IBA Rules, which states that “Article 9.3(c) expresses the guiding principle that expectations of the parties and their advisors at the time the legal impediment or privilege is said to have arisen should be taken into consideration. Often, these expectations will be formed by the approach to privilege prevailing in the home jurisdiction of such persons.”3 The Respondent also notes that while Apotex Inc. (the Second Claimant) is a Canadian company, the Claimants’ Regulatory Counsel and the Consultants were all based in the United States of America. Finally, the Respondent notes that New York (USA) is the legal place of this arbitration.4
21.
The Tribunal considers that Article 9(3)(c) of the IBA Rules sufficiently provides for recognition of the expectations of the Parties and their advisers at any material time, as does Article 9(3)(e) of the IBA Rules on the need to maintain fairness and equality as between the Parties. The Parties’ reliance upon US law suggests both their expectations and the elements required to maintain fairness and equality between them. Nonetheless, as explained above, as an international arbitration tribunal, the Tribunal bases its decision directly upon the exercise of its discretionary powers under the IBA Rules and the ICSID Arbitration (Additional Facility) Rules, rather than national rules of law; and as already noted, the issues dividing the Parties arise from the application of the IBA Rules to the particular circumstances of this case, rather than the scope of those rules.
22.
As to such issues of application, the Claimants submit (inter alia) that “[t]he Consultants were engaged by Apotex’s counsel to provide legal advice regarding regulatory compliance and to help respond to FDA. After putting Apotex on Import Alert, FDA informed Apotex that it must improve its cGMP compliance and have its facilities successfully re-inspected. However, FDA provided no guidance as to how Apotex should improve its compliance or what enhancements would be deemed sufficient at re-inspection. Thus, the Consultants performed a critical role in assisting the attorneys in creating a strategy for Apotex’s response, identifying areas for investigation, creating a review and remediation protocol, providing strategic input and analysis, and helping to formulate Apotex’s final responses to the multitude of issues raised by FDA. The Consultants’ assistance to Counsel in responding satisfactorily to FDA goes far beyond performing mere ‘technical research’.” The Tribunal notes that, of course, the Consultants were not engaged themselves to provide any legal advice (not being lawyers); and accordingly the Tribunal interprets the Claimants’ submissions (as cited above and elsewhere) as meaning that the Consultants were engaged for the purpose of assisting the Claimants’ Regulatory Counsel in providing legal advice to the Claimants, both generally and also as regards the prospect of litigation with the Respondent or its agencies (including, primarily, FDA).
23.
As noted above, the Claimants invoke attorney-client privilege in conjunction with the work product doctrine for 41 communications. The Claimants contend that attorney-client privilege covers communications made to agents of an attorney engaged to help translate the complicated landscape of technical subject matters, in this case FDA regulations. More specifically, “the Consultants gathered information through confidential communications from Apotex and translated it into useable and understandable form for Counsel, in order for Counsel to render legal advice.”5
24.
The Respondent challenges the Claimants’ application of attorney-client or work product privilege to the communications with the Consultants.6 Regarding the documents produced by or involving Jeff Yuen & Associates (“JYA”), the Respondent contends that the engagement letter between Buc & Beardsley, LLP and JYA, dated 22 September 2009,7 is a mere veneer intended to cloak JYA’s work with ostensible privilege to which that work is not entitled.8 The Respondent invokes various facts in support of its allegation: the engagement letter is signed by the Claimants; the Claimants were made responsible to pay JYA’s fees directly; and the Claimants have pleaded in these proceedings that the Claimants themselves (not their Regulatory Counsel) had retained the services of an outside consulting group to guide the remediation process intended to remove the Import Alert.9
25.
The Respondent concludes that JYA was “not hired to assist in the provision of ‘legal advice,’ but rather [was] hired specifically to audit Apotex’s quality systems and provide corrective action plans to assist Apotex in returning to cGMP compliance. The attorney-client privilege does not extend to consultants hired to make scientific or business assessments, including consultants hired to achieve regulatory compliance.”10
26.
Alternatively, the Respondent maintains that the Claimants waived any privilege regarding documents concerning the same subject-matter by having selectively disclosed communications, audits, plans and documents of their consultants. In the words of the Respondent, the Claimants cannot use privilege both as a “sword and a shield”.
27.
The Respondent advances similar arguments with respect to communications involving Paul Vogel Consulting Services LLC,11 which need not here be repeated.
28.
In response, the Claimants state that their Regulatory Counsel did in fact retain the Consultants to assist them in providing legal advice to the Claimants in connection with the Claimants’ compliance with cGMP and the interaction with the FDA concerning cGMP compliance and enforcement issues, including the prospect of litigation. This legal advice was then used to draft the Claimants’ various responses to FDA.12
29.
The fact that the Claimants paid the Consultants’ fees directly does not demonstrate, according to the Claimants, that the Consultants were engaged by the Claimants, rather than by their Regulatory Counsel.13 In addition, the Claimants submit that documents dated on or before the engagement letters are still entitled to attorney-client privilege protection because an attorney-client relationship can and did commence prior to the date of signing of the retainer agreement.14
30.
With regard to the Respondent’s alternative case on waiver, the Claimants assert that they are not relying on any privileged communications to support their case. Rather than waiving privilege, the Claimants submit that they have relied only upon the final responses to the FDA, which are the by-product of the collaboration between the Consultants, the Regulatory Counsel and the Claimants.15
31.
Finally, Apotex notes that the US has not demonstrated any substantial and compelling need for these documents sufficient to overcome the attorney-client privilege.16
32.
US Courts, as also courts in other common law countries, have long recognized that attorney-client privilege can extend beyond the traditional relationship between an individual attorney and an individual client.17The privilege may thus attach to communications with third parties acting as agents of an attorney, when the purpose of their work is to facilitate the provision of legal advice by that attorney.18 This approach recognises that lawyers in modern times for complex disputes need technical, financial or other expert consultants to “translate” difficult issues in order properly to advise their clients. In the Tribunal’s view, the critical question here is whether the principal purpose of the third-party communications was to provide for legal advice from the Regulatory Counsel to the Claimants.
33.
In considering this question, the Tribunal observes that the factual burden of proof under both the IBA Rules and US law lies with the party asserting attorney-client privilege so as to exclude communications from the rule otherwise favouring disclosure,19 for which specific evidence is required by US courts.20 As asserted by the Respondent, party can show that the underlying purpose was to assist in providing legal advice;21 thus, a formal engagement and an attorney’s use of a consultant’s particular knowledge point communications with third-party consultants will not be privileged unless the asserting toward exclusion;22 but, on the other hand, where it is found that consultants were retained “primarily to provide technical services and not to interpret confidential client information,” the communications will be held discoverable under US law.23
34.
In this case, as regards the disputed 41 documents, the Tribunal accepts the Claimants’ statement that the Consultants were engaged in order to assist the Claimants’ Regulatory Counsel in providing legal advice to the Claimants. The Tribunal does not accept the Respondent’s unsupported factual allegation that the Claimants deliberately asked their Regulatory Counsel to issue letters of engagement for the Consultants for the sole purpose of protecting, as a “veneer”, their work from being produced in all future litigation or arbitration proceedings. That the Claimants also signed the engagement letters and directly paid the Consultants does not contradict, in the Tribunal’s view, the fact that the Consultants were retained in order to assist the Regulatory Counsel as the Claimants’ legal advisers.
35.
The Tribunal now turns to these communications. Most of the documents for which the attorney-client privilege is invoked involve Ms. Kate Beardsley and Ms. Carmen Shepard, being lawyers at Buc & Beardsley, LLP and Zuckerman Spaeder LLP. The attorney-client privilege can therefore be confirmed as regards such documentation. The other communications (for which none of the lawyers seems to be named amongst the senders and addressees) are documents which the Claimants state were drafted at the request of the Regulatory Counsel or include chains of communications with Regulatory Counsel. The Tribunal considers that these communications are also protected by attorney-client privilege. Finally, the Tribunal accepts that attorney-client privilege can extend to communications with attorneys’ agents prior to signing any retainer agreement and therefore that communications pre-dating the Consultants’ formal engagement by letter here also benefits from attorney-client privilege.
36.
The Tribunal does not consider that the Respondent has made out its claim of waiver of privilege in regard to any disputed document. Of course, a party cannot waive part of a document or part of related documentation so as to present incomplete and inaccurate materials; but the Tribunal is not persuaded that the Claimants have engaged in this subterfuge.
37.
In conclusion, the Tribunal decides that the 41 documents listed the Claimants’ privilege log (for which the Claimants invoke attorney-client privilege) are not ordered to be produced by the Claimants to the Respondent, by reason of Article 9(2)(b) of the IBA Rules.
38.
As regards work product doctrine, the Claimants assert that “Apotex engaged the Consultants to assist Counsel in providing legal advice regarding remediation efforts, which was motivated in part by a desire to avoid litigation. ‘Regulatory investigations by outside agencies present more than a mere possibility of future litigation, and provide reasonable grounds for anticipating litigation.’ Even if Apotex was ‘partially motivated by a business purpose, the privilege still protects these documents.’ […] [C]ommunications with the Consultants that relate to investigative efforts, analysis, and remediation planning are entitled to work product protections.24
39.
The Respondent submits that the Claimants cannot withhold any documents on the basis of the work product doctrine because the doctrine protects only those documents that are prepared in anticipation of litigation. The Respondent notes that the Claimants have repeatedly stressed that the Consultants were engaged in order to improve the Claimants’ quality systems and implement plans for corrective action. The Respondent also contends that the Claimants repeatedly provided the Consultants’ reports to FDA and have relied upon those same documents to advance legal arguments in this arbitration. Therefore, so the Respondent concludes, the Claimants cannot rely upon any work product doctrine to shield similar documents and to deny the Respondent an opportunity to challenge the Claimants’ arguments.25
40.
The Tribunal notes that US law, as under many common law systems (albeit there labeled differently), a party may invoke the work product doctrine to protect from disclosure documents that are “prepared in anticipation of litigation.”26 This privilege is intended to keep litigation planning private and thereby prevent its unfair use by an opposing party.27 Similar to attorney-client privilege, the work-product doctrine extends beyond work created by an attorney to cover the work of consultants and others engaged to assist a party’s lawyers.28
41.
Under US law, it appears that the requirement for the relevant document to be prepared in anticipation of litigation does not limit the work product doctrine to documents prepared primarily or exclusively to assist in the litigation itself; and the broad language “in anticipation of” therefore includes documents created because litigation remained prospective.29 What matters is that a reasonable likelihood or “substantial probability” of litigation existed at the time the document was created.30
42.
As with attorney-client privilege, the Tribunal recognises that the responding party bears the burden, under the IBA Rules and US law, of showing that the withheld documents fall within the work product doctrine’s protection.31 The NAFTA tribunal in Glamis Gold, after considering US law on the work product doctrine, observed that the party asserting the privilege must “show the subject matter of the document relates to a likely lawsuit by an identifiable adversary in respect of a specific dispute.”32 The Tribunal considers the application of this practical test appropriate in this arbitration.
43.
The description of the documents in the Claimants’ Log “quality system assessment”, “corrective action plan”, “quality systems gap and remediation”, does not indicate, one way or the other, whether any these documents were prepared in anticipation of litigation.
44.
In its Memorial, the Claimants pleaded that “Apotex had ‘retained an independent expert consultant to assist in executing corrective actions and ongoing monitoring for effectiveness.’ The planned quality system improvements were designed to assure that all products manufactured by Apotex for US distribution met or exceeded the requirements of the GMP regulations [...].”33 When describing the reports of the Consultants sent to FDA on 17 March 2010, the Claimants pleaded “Jeff Yuen & Associates, Inc. presented its independent review of Apotex quality structures and processes, taking into account all findings from numerous regulatory inspections conducted in 2008 and 2009. Finally, Paul Vogel Consulting Services LLC assisted Apotex in producing a corrective action plan (CAP) and a global quality systems enhancement program.”34The Claimants also pleaded: “[w]ith respect to the corrective action plan, Apotex explained that the objective of this ambitious program was a comprehensive cGMP enhancement of the quality systems across all development and manufacturing sites of Apotex.”35
45.
Based on these statements, it appears to the Tribunal that these disputed documents were prepared in order to remove or qualify a measure imposed by the Respondent’s agency (the Import Alert of 28 August 2009). They were prepared at times when a litigious dispute against the Respondent or its agencies was more than a possibility, but (as transpired) a substantial probability. The Parties dispute whether the documents were prepared in anticipation of such litigation or rather to respond to FDA’s immediate regulatory requirements. However, as indicated above (paragraph 21), under Article 9 of the IBA Rules, the expectations of the parties and considerations of fairness should be taken into account in assessing a claim of privilege. These documents were produced pursuant to engagements with Claimants’ regulatory counsel clearly indicating the participants’ expectations that they would be privileged.
46.
In these circumstances, the Tribunal concludes that the work product doctrine applies to the 312 disputed documents listed in the Claimants’ privilege log (beyond the 41 also subject to attorney-client privilege).
47.
Accordingly, for these reasons, the Tribunal does not order the Claimants to produce these 312 documents to the Respondent, by reason of Article 9(2)(b) of the IBA Rules. (The Tribunal, as already indicated above, does not here seek to base its decision upon US law or the application of US law to this case, as if it were a US Court. It does consider, however, that at all material times the expectations in regard to US law of the Claimants (with their several advisers), however much now disputed by the Respondent as a matter of US law, are consistent with this decision of the Tribunal under the IBA Rules).

III. The Respondent’s Privilege Log

48.
Out of the 35 documents contained in the Respondent’s privilege log, there is only one disputed document. (The Tribunal addresses the disputed redactions separately below). For the other 34 documents, the Claimants do contest that a domestic privilege, such as the deliberative process privilege or exemptions under the Freedom of Information Act (FOIA), is applicable in these international arbitration proceedings; but, to the Tribunal’s understanding, the Claimants do not now object to the Respondent withholding these documents from production under Articles 9(2)(b) and Article 9(2)(f) of the IBA Rules.
49.
The disputed document is described by the Respondent as a Draft Information Advisory, entitled “Subject: Warning Letter to Apotex Inc.” prepared for internal briefing purposes only for the US Secretary of Health and Human Services. The Respondent states that three versions of this same document were inadvertently produced to the Claimants and that as an advisory prepared for internal use and briefing purposes only, the information advisory was not intended to be made public, and in any event it was not, as a draft, finalised even for internal briefing purposes. The Respondent also states that draft advisories are internal, pre-decisional communications that form part of a government agency’s decision-making process, are protected by deliberative process privilege under US law and are therefore excluded from production under Article 9(2)(b) of the IBA Rules (for legal impediment or privilege) and/or Article 9(2)(f) of the IBA Rules (on grounds of special political or institutional sensitivity). Lastly, the Respondent submits that it has not waived the privilege attaching to these documents and requests the immediate return of the inadvertently produced draft(s).36
50.
The Claimants object to the Respondent’s withholding this document from production and do not consent to returning its produced version(s) because, in their submission, the document is not privileged under US law or the IBA Rules, and even if it were, the Respondent has waived any such privilege. The Claimants note that the Respondent has produced three nearly identical versions of the same document to the Claimants during these arbitration proceedings in two separate procedures (the US’s 8th and 10th document productions of 10 and 24 May 2013, respectively). The Claimants also note that the version marked US007470-71 was the “Confidential” Exhibit C-365 to the Claimants’ Reply Memorial of 24 May 2013. Accordingly, the Claimants request the Tribunal to overrule the US’s assertion of privilege, to order the production of the withheld document and not to order the return of its produced versions, one of these now forming the Claimants’ Exhibit C-365.37
51.
The Tribunal accepts that the document was inadvertently produced by the Respondent to the Claimants in three versions under two procedures for document production within these arbitration proceedings and that, subsequently, the Claimants referred to one version in their Reply Memorial as a confidential exhibit relevant to its case in this arbitration.
52.
Paragraph 62 of the Claimants’ Reply Memorial states: “Apotex immediately became a subject of discussion at the highest levels of FDA. The company was discussed at a meeting between the FDA Commissioner and her executive staff on Tuesday, June 9, 2009. On June 24, 2009, FDA informed the Secretary of the US Department of Health and Human Services of the impending Etobicoke warning letter.” The next Paragraph 63 states that: “Elevation to political levels of the issuance of a warning letter is highly unusual. Political officers are informed of CDER action typically only when, due to the significance of the underlying issues, FDA expects high level of publicity to be associated with its proposed action.” The Tribunal understands that the Etobicoke Warning Letter was eventually issued on 25 June 2009 (which is not a disputed document).
53.
In these circumstances, the Tribunal concludes that the Respondent has waived any privilege in regard to the three versions of the draft letter produced to the Claimants, including the version now adduced in evidence by the Claimants as Exhibit C-365. Accordingly, the Tribunal rejects the Respondent’s request for the return of the produced versions.
54.
As regards redacted documentation, the Claimants complain that the Respondent has inconsistently, heavily, and improperly redacted more than 550 documents on the basis of attorney-client privilege, deliberative process privilege and other legal exemptions. The Claimants submit that these heavily redacted documents should have been included in a privilege log. The Claimants submit that by failing to describe the basis for asserting a privilege, the Respondent has made it impossible for the Claimants to determine whether the assertion of privilege in the form of such redactions is justifiable. The Claimants also note that there appears to be inconsistencies in the type of material the Respondent has redacted, namely information redacted under the deliberative process privilege and information relating to third parties. According to the Claimants, the ostensible deficiency in applying consistent standards calls into serious question whether any of the Respondent’s redactions can be justified.
55.
Accordingly, the Claimants request the Tribunal to order the unredacted production of 20 documents. These 20 documents fall into two main categories: (i) the heavily redacted documents (under the deliberative process privilege and the attorney-client privilege); and (ii) the documents redacted inconsistently (under the deliberative process privilege and third party information).
56.
Regarding the first category of documents, the Claimants submit that the basis for redacting information based on privilege is not self-evident and that as a consequence the Respondent “has eschewed its ‘burden of proving that such privilege applies to each document’.”38 The Respondent contends that these documents contain ample information justifying privilege; and, as regards deliberative process privilege, the Respondent asserts that privilege applies by virtue of Articles 9(2)(b) and 9(2)(f) of the IBA Rules, as recognised by several NAFTA Chapter Eleven tribunals.
57.
Regarding the second category of documents, the Claimants claim that the Respondent has redacted material on an inconsistent basis, causing the Claimants to question whether the Respondent is using the deliberative process privilege (by itself or under the IBA Rules) as both a sword and a shield, by choosing to redact information when that information would be helpful to the Claimants and by choosing not to redact information when conversely that information would be helpful to the Respondent.39The Claimants express similar concerns with regards to third party information, as follows: “[i]n its privilege log, the US has asserted that US law prohibits the US from releasing trade secret or confidential commercial information. However, the US has selectively redacted confidential information related to third parties. As with the deliberative process privilege, it appears that the US may be redacting information on the basis of how helpful it is, rather than applying redactions on a consistent basis. This approach finds no support in the IBA Rules or in US law and should be rejected by the Tribunal.”40
58.
The Respondent replies that each of the “B(5)” designations, which is a FOIA designation for pre-decisional and deliberative documents, should be understood to refer to Articles 9(2)(b) and 9(2)(f) of the IBA Rules.41 Regarding the alleged inconsistencies, the Respondent notes that it made extraordinary efforts to comply with the Claimants’ massive document requests in the very short time allotted under the Tribunal’s procedural time-table. According to the Respondent, it has produced 3,559 documents totaling over 13,800 pages. The Respondent contends that, if and to the extent that there were minor inconsistencies in redactions to the produced documents, they were solely the result of the expedited process involving multiple reviewers.42
59.
Regarding the heavily redacted documents, the Tribunal accepts from their face their treatment as privileged by reason of Articles 9(2)(b) and (f) of the IBA Rules. It might have been easier for the Tribunal if the Respondent had addressed such redacted privilege seriatim in its privilege log; but the Tribunal is satisfied that the Claimants were not thereby prejudiced from presenting their case in this current dispute over document production. By itself, the Tribunal cannot of course check upon these redactions; but, as indicated earlier, the Tribunal must here trust the good faith and professionalism of the Respondent’s legal advisers. It sees no good reason now to do otherwise.
60.
With respect to the allegedly inconsistent redactions, the Tribunal acknowledges that the enormous exercise with such a relatively short period of time required of the Respondent to meet the Claimants’ extensive requests for document production led inevitably to the apparent inconsistences of which the Claimants now complain. Far from establishing a scheme to take unfair advantage of redactions (as alleged by the Claimants), the Tribunal infers the contrary: these particular inconsistencies establish the good faith of the Respondent’s multiple reviewers which would be absent from a nefarious forensic scheme to use redactions “as a sword and a shield”. The Tribunal therefore sees no good reason now to initiate any procedure to check upon the work of the Respondent’s own reviewers.
61.
Accordingly, for all these reasons, the Tribunal rejects the Claimants’ request in regard to these 20 disputed redacted documents.

IV. The Tribunal’s Order

62.
In regard to the Claimants’ claims to privilege and their privilege log, the Tribunal dismisses all the Respondent’s applications;
63.
In regard to the Respondent’s claims to privilege and its privilege log, the Tribunal dismisses all the Claimants’ applications; and
64.
Subject to any further application by the Parties and order by the Tribunal, the current procedural time-table (including the hearing dates), as set out in Paragraph 14.2.7 of the First Procedural Order, remains unchanged, as summarised below:

20 or 27 September 2013 - The Respondent to file its Rejoinder on the Merits and Reply on Jurisdiction (the earlier date if the Claimants do not file a supplement to their Reply of24 May 2013 and the later date if they do);

11 or 18 October 2013 - The Claimants to file their Rejoinder on Jurisdiction (ditto);

25 October 2013 - The Claimants and the Respondent to notify names of any factual and expert witnesses to be cross-examined at the oral hearing;

31 October 2013: The pre-hearing organisational meeting (by telephone conference), here tentatively arranged (subject to further confirmation) for 0800 hours (DC time) equivalent to 1400 hours (Paris time); and

18 -26 November 2013: The oral hearing in Washington DC, with a reserve day of Saturday 23 November 2013.

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