undue burden or expense, including, but not limited to, one or more of the following:

(1) that the discovery not be had;

(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

(5) that discovery be conducted with no one present except persons designated by the court;

(6) that a deposition, after being sealed, be opened only by order of the court;

(7) that a trade secret, or confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; or

(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

Defendant, on the other hand, insists that under rule 6.4(b) it was proper to claim executive privilege by interposing an objection to plaintiffs' request for production, as was done in the instant case, and that the filing of a motion for a protective order was not required. Rule 6.4(b), so far as pertinent, provides:

(b) Procedure: * * *

The party upon whom the request is served shall serve a written response within a period designated in the request, not less than 30 days after the service thereof or within such shorter or longer time as the parties may agree or the court may allow. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless it is objected to, in which event the reasons for objection shall be stated. If objection is made to part of an item or category, the part shall be specified. The party submitting the request may move for an order under rule 6.5 with respect to any objection to or other failure to respond to the request, or any part thereof, or any failure to permit inspection as requested.

As is readily apparent, rule 6.4 (b) explicitly provides for the assertion of objections to a request for production of documents. Thus, although a motion for protective order under rule 6.1 (c) may serve as a procedural vehicle for interposing a claim of executive privilege, the Government may also assert its claim of privilege by a timely objection to the request for production of documents. See Wright & Miller, "Federal Practice and Procedure" Civil section 2213 (1970). If the party seeking discovery wishes to challenge the claim of privilege raised as an objection to production, it may do so by a motion to compel discovery under rule 6.5, as plaintiffs have proceeded to do in the instant case. Thereupon, the court will rule on the motion to

compel, and determine the question of privilege. Cf. Broadbent v. Moore-McCormack, 5 F.R.D. 220, 222 (E.D. Pa. 1946).

Here, it is undisputed that plaintiffs granted defendant an extension of time until September 25, 1978, to assert a claim of privilege or make other objections to plaintiffs' request; and that defendant asserted a claim of executive privilege in its covering letter of September 25, 1978, with respect to the deleted portions of the six documents furnished to plaintiffs. Under these circumstances, plaintiffs' contention that defendant has waived any privilege is without merit.

The two decisions upon which plaintiffs rely are plainly distinguishable from the facts presented here.

In Intercontinental Fibres, Inc. v. United States, 69 Cust. Ct. 337, C.R.D. 72-27 (1972) Judge Watson, construing rule 7.3 pertaining to the taking of depositions upon oral examination, treated defendant's objections to plaintiff's motion for a deposition as a cross-motion for a protective order. However, it must be recognized that rule 7.3 does not expressly provide for objections "addressed to the motion to take a deposition," whereas here the Government followed rule 6.4(b), which specifically provides for objections "addressed to the request for production of documents."

In Airco, Inc. v. United States, court No. 76–3-00643, Judge Richardson, inter alia, denied the Government's motion for leave to file out of time a motion for a protective order based on a claim of privilege.' Unlike the present case, in Airco the Government admittedly failed to object or claim privilege in response to plaintiff's request for production of documents, as contemplated by rule 6.4 (b), but instead stated that it would comply with plaintiff's request.

Plainly, here the defendant has followed a correct procedure in asserting the Secretary's claim of privilege as an objection to plaintiffs' request for production of documents pursuant to rule 6.4(b). Consequently, there has been no waiver by defendant of any executive privilege pertaining to the six documents in dispute.

III

Turning to consideration of the merits of defendant's claim of executive privilege:

In support of its claim, defendant has filed an affidavit by the Secretary of the Treasury formally asserting executive privilege with respect to each of the six documents "to the extent they contain advice, recommendations, or statements of views and opinions by officials and staff members of the Treasury Department." Among other things, the affidavit recites the Treasury's need for confidentiality in the decision-making process in connection with antidumping investigations, and the serious injury to the U.S. Government that would

1 Unpublished order entered June 1, 1978.

result if the advice, recommendations, or statements of views and opinions contained in the documents were disclosed publicly.

It is well established that the executive branch is privileged to withhold disclosure of intragovernmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions are formulated. The foregoing privilege, however, is not absolute but is qualified. Thus, consideration of a claim of executive privilege requires a delicate balancing of competing interests. On the one hand, there is the public's interest in preserving confidentiality to promote intragovernmental candor which is necessary for orderly functioning of the Government; on the other hand, there is the individual's need for disclosure of the particular information sought. And in the absence of proper demonstration of need for production of the privileged matters which outweighs the harm that disclosure may do to intra-governmental candor, the claim of privilege should be sustained. Sprague Electric Company v. United States (Capar Components Corp., Party-in-Interest), 81 Cust. Ct. 168, C.R.D. 78–18 (1978) and cases there cited. Here, plaintiffs have failed to show any need for disclosure, and indeed have not even challenged the merits of defendant's claim of privilege.

As mentioned above, certain portions of the six documents involved herein have been deleted by defendant. Although the Secretary states in his affidavit that each of six documents "contain advice, recommendations or statements of views or opinions, of various officials and staff members of this [the Treasury] Department," the Secretary's affidavit does not "specifically" aver that the "deleted portions" comprise advice, opinions, and recommendations.2 Executive privilege, fundamentally, does not apply to purely factual data prepared for intra or interoffice use which would not compromise military or state secrets. EPA v. Mink, 410 U.S. 73, 87-88 (1973); Verrazzano Trading Corp. v. United States, 70 Cust. Ct. 347, 350-52, C.R.D. 73–9, 358 F. Supp. 273 (1973). Even factual material included in deliberative memoranda, generally, has been held discoverable if susceptible to severance from its context. See Smith v. F.T.C., 403 F. Supp. 1000, 1015 (D. Del. 1975).

Where discovery is resisted, as in the instant case, courts frequently examine documents "in camera" in order to determine whether they should be held in a confidential status or be disclosed to the party seeking production. United States v. Nixon, 418 U.S. 683, 714-16 (1974); EPA v. Mink, 410 U.S. 73, 88 (1973); Pasco Terminals, Inc. v. United States, 80 Cust. Ct. 249, C.R.D. 78-3 (1978); Verrazzano

2 Parenthetically, defendant's covering letter of Sept. 25, 1978, served with the 6 expurgated documents states: "The Secretary of the Treasury has decided to claim privilege as to those (deleted] portions inasmuch as they contain intra-office staff advice and opinions. In addition the deleted sections do not contain factual matters."

Trading Corp. v. United States, 69 Cust. Ct. 307, 314, C.R.D. 72-19, 349 F. Supp. 1401 (1972); Sun Oil Company v. United States, 514 F.2d 1020, 1024-25 (Ct. Cl. 1975). However, "in camera" inspection is not to be utilized automatically in every case. EPA v. Mink, supra, at 92-93.

As we have seen, defendant claims that "portions" of the six documents sought by plaintiffs are nondiscoverable on the ground of executive privilege. In certain cases where courts have utilized the "in camera" procedure for determining claims of executive privilege, "it appeared, before the inspection was ordered, that the claimant was entitled to some amount of discovery," and it was necessary to separate the privileged and unprivileged materials. Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, 40 F.R.D. 318, 332 (D.D.C. 1966), aff'd sub nom. V.E.B. Carl Zeiss, Jena v. Clark, 128 U.S. App. D.C. 10, 384 F. 2d 979 (1967), cert. denied, 389 U.S. 952 (1967). Here, plaintiffs are concededly entitled to a severable but undelineated portion of the six documents involved. It is, of course, for the Court and not the Secretary of the Treasury to decide whether the expurgated portions of the documents are privileged as claimed by defendant. Cf. Sprague, supra, and cases cited. While the foregoing proposition may be self-evident, at times there is value in reiterating the obvious. In light of the interplay of the various factors involved herein, and under all the facts and circumstances, it is appropriate that the Court examine the six documents "in camera" without deletions in order to determine whether plaintiffs should have access to any portion of the matters expurgated by defendant. Indeed, there can be no doubt of the propriety of such "in camera" inspection. Kerr v. United States District Court, 426 U.S. 394 (1976); United States v. Nixon, 418 U.S. at 706. Accordingly, at this time there is no basis for granting defendant's request for an immediate appeal pursuant to 28 U.S.C. 1541(b) (1976).

In view of the conclusions reached, it is hereby ORDERED:

(1) That the Secretary of the Treasury shall within thirty (30) days of the entry of this order prepare and transmit under seal to the clerk of the U.S. Customs Court certified copies of the six documents identified in the Secretary's affidavit. These copies shall be in complete and unexpurgated form.

(2) The unexpurgated copies shall be inspected by the court "in camera" together with the expurgated copies heretofore submitted by the parties for the purpose of considering defendant's claim of executive privilege and determining whether the expurgated portions should be disclosed to plaintiffs.

(3) Defendant's request to file an immediate appeal pursuant to 28 U.S.C. 1541 (b) is denied at this time.

(C.R.D. 79-3)

NADEL & SONS TOY CORP. v. UNITED STATES

On Plaintiff's Request for a Written Opinion or a Statement of Findings of Fact and Conclusions of Law

Court Nos. 66/56409, etc.

[Request denied.]

(Dated January 10, 1979)

Mandel & Grunfeld (Steven P. Florsheim of counsel) for the plaintiff.

Barbara Allen Babcock, Assistant Attorney General (Robert H. White, trial attorney), for the defendant.

MALETZ, Judge: In this case, the court on December 18, 1978 denied plaintiff's motion for summary judgment "on the ground that genuine issues of fact exist which require a trial." Plaintiff has now filed a "request" that the court "issue a written opinion or a statement of findings of fact and conclusions of law concerning the court's denial" of its summary judgment motion. For the reasons that follow, the request is denied.

In support of its request, plaintiff argues that by reason of 28 U.S.C. 2638(a) "where, as in the instant matter, a judge of the U.S. Customs Court denies the relief requested in a dispositive motion (such as a motion for summary judgment), the judge is required to state the reasons for his decision, either through a written opinion or findings of fact and conclusions of law." [Italics added.] The argument is totally untenable.

28 U.S.C. 2638(a) provides:

A decision of the judge in a contested case shall be supported by either (1) a statement of findings of fact and conclusions of law, or (2) an opinion stating the reasons and facts upon which the decision is based.

This provision, however, is applicable only to a final decision of a judge of this court, i.e., a decision which is appealable as a matter of right. This is evident from the language of 28 U.S.C. 2638(b) which provides that "the decision of the judge is final and conclusive, unless a retrial or rehearing is granted *** or an appeal is made to the Court of Customs and Patent Appeals ***." [Italics added.] See also H. Rept. 91-1067 (91st Cong., 2d sess., 1970) page 21.

It is to be added that the denial of a motion for summary judgment is of course not a final decision but an interlocutory order, an appeal from which may not be had in the absence of certification. Considered in that light, plaintiff's argument carried to its logical conclusion would