Case 3:17-cv-00101-RDM Document 110 Filed 11/02/18 Page 1 of 6
1700 G Street NW,
Washington, DC 20552

November 2, 2018
Filed Via ECF
The Honorable Robert D. Mariani
U.S. District Court, Middle District of Pennsylvania
William J. Nealon Federal Bldg. & U.S. Courthouse
235 N. Washington Avenue
Scranton, PA 18503
Re:

CFPB v. Navient Corp., et al., Case No. 3:17-CV-00101-RDM

Dear Judge Mariani:
In accordance with the Court’s October 30, 2018 order (Doc. 109), I write on behalf of the
Bureau to respond to the letter filed by Defendants on October 10, 2018 (Doc. 107). For the reasons
below, the Bureau respectfully requests that the Court deny the relief that Defendants have sought.
1.
The Bureau is not improperly withholding documents. Defendants’ claim that the
Bureau is withholding responsive documents is baseless. As an initial matter, it is not clear why
Defendants expect that the Bureau would be in possession of a large volume of non-privileged
responsive documents, when this case concerns Defendants’ conduct, and the Bureau has no
relevant relationship with Defendants apart from being a regulator. In any event, Defendants point
to no authority to support the notion that producing fewer than a certain percentage of documents
returned after application of search terms means that documents were improperly withheld. If that
were so, parties would have a perverse incentive to craft extremely narrow search terms to achieve a
small universe of documents to review. Instead, the Bureau used very broad search terms, including
“forbearance,” “income driven,” and “IDR,” to search for, among other things, all documents that
relate to any of the allegations in the Complaint. Casting this wide net increased the Bureau’s ability
to find responsive documents, but it also returned many “false positives.” For example, there are
myriad ways in which a document mentioned “forbearance” without relating to any allegation in the
Complaint, such as being about mortgage servicing or about the conduct of a different student loan
servicer. Another reason many documents were nonresponsive is that, of the documents reviewed,
only 143,000 were unique documents that pre-dated the January 18, 2017 discovery cutoff and hit
on any of the Bureau’s search terms (i.e., many were merely a “family member” – a cover email or
attachment – associated with a document hitting on a search term). 1
1

Defendants’ search counts for the terms “Pioneer” and “Navient” (Doc. 107 at 2) include
documents post-dating January 18, 2017, as well as family members without hits on those terms.
There were approximately 32,000 unique documents that hit on the term “Navient” and 23,000
unique documents that hit on the term “Pioneer” that are dated on or before January 18, 2017. This
includes a large number of documents that contain mere references to the investigation and internal
communications of enforcement staff, both of which Defendants agreed are not responsive (see A23); as well as documents that deal with an issue that was not alleged in the Complaint. (“A__” refers
to a page of the appendix of supporting documentation filed with this letter.)

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Had the Bureau employed the much narrower search terms used by Defendants, there would
have been many fewer “false positives.” For example, Defendants’ search queries required that the
term “forbearance” or “IDR” appear within a certain distance of another word such as “good” or
“better.” This type of query presents a greater risk that responsive documents were missed
compared to simply using the term “forbearance.” As the Bureau explained to Defendants (an
explanation that Defendants have mischaracterized – see Doc. 107 at 2), the Bureau took an
expansive view of Defendants’ document requests and made responsiveness determinations without
regard to whether the documents might be helpful or harmful to the Bureau’s case. Defendants have
no basis for suggesting anything to the contrary. See, e.g., Carter, Fullerton & Hayes, LLC v. FTC,
601 F. Supp. 2d 728, 736 (E.D. Va. 2009) (“It would be a stretch for the Court to issue a finding
that the agency’s procedures [to search for and produce documents] were flawed purely because
they did not produce the [private party’s] desired results.”). 2
Defendants also incorrectly assert that the Bureau produced none of the documents it
obtained from the i3 Group (i3) before this lawsuit. In fact, the Bureau searched those documents
and produced not only documents reflecting steering into forbearance, but also documents showing
that Navient enrolled borrowers in IDR. Defendants now demand production of all documents from
i3 “relating to Defendants,” but that is a new document request and, in any event, is impermissibly
overbroad because the mere mention of Navient does not make a document relevant. Defendants
never sought to discuss with the Bureau the search terms used to locate responsive documents from
i3. Indeed, Defendants did not produce relevant communications in which i3 employees told
Navient that Navient representatives refused to offer IDR to borrowers. The Bureau only discovered
these communications through its subpoena to i3. Nor do Defendants have any basis to object to the
subpoena; if Defendants believed that the Bureau’s subpoena was deficient (it was not), they were
free to serve their own subpoena. Defendants also assert that the Bureau withheld a draft declaration
exchanged with a former i3 employee after the January 18, 2017 discovery cutoff; however, the
Bureau proposed that both parties share communications with third-party witnesses post-dating
January 18, 2017, but Defendants refused.
Finally, Defendants incorrectly claim that the Bureau is withholding communications with
Congress or the media. The Bureau searched for responsive communications with Congress or the
media and produced all responsive communications located from that search. The Bureau did not
locate any communications with Congress or the media concerning the Navient investigation that
pre-dated the Complaint (the email with a Congressional staffer referenced by Defendants did not
relate to the investigation), but did locate and produce multiple communications with the media on
the date that the Complaint was filed. The lack of responsive documents makes perfect sense. With
limited exceptions not applicable here, the Bureau’s investigations are not public until a settlement
is reached or a lawsuit is filed. Thus, as a general matter, the Bureau does not communicate with
Congress or the media about its investigations.
2.
The Bureau’s privilege claims are valid. In claiming that the Bureau’s privilege
assertions are deficient, Defendants mischaracterize the information they received from the Bureau.
2

Although some of the cases cited in this letter arise in the FOIA context, the common law
deliberative process privilege is coextensive with FOIA’s deliberative process exemption. See
Rockwell Int'l Corp. v. DOJ, 235 F.3d 598, 601 (D.C. Cir. 2001).
2

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For example, to claim that the descriptions for 26 categories of documents described on the
Bureau’s privilege log are deficient, Defendants point to one phrase in the description provided for
five categories: “identification and analysis of problems or failures in the student loan market.”
Doc. 107 at 5. But the Bureau provided much more information than that for each of those five
categories, not only in the privilege log itself (A82-131), but also in two documents Defendants
omitted from their filing – a 71-page declaration of a senior Bureau official (A10-80), as well as a
September 20, 2018 letter (A138-39). The Bureau included substantial detail on its log, while also
disclosing the sender, recipient(s), and date of every withheld email, as well as descriptions of the
emails based on grouping them into categories. This was consistent with the parties’ agreement that
categorical privilege logs were allowed. See Doc. 66-2; see also U.S. ex rel. Williams v. Renal Care
Grp., Inc., 696 F.3d 518, 527 (6th Cir. 2012) (upholding privilege assertions and denying in camera
review where agency submitted declaration and categorical privilege log justifying assertions of
deliberative process privilege); Auto. Club of NY, Inc. v. Port Auth. of NY & NJ, 2014 WL 2518959
(S.D.N.Y. June 4, 2014), at *5-7 (same), aff’d, 2015 WL 3404111 (S.D.N.Y. May 27, 2015). 3
Contrary to Defendants’ assertions, the Bureau is not required to identify a specific decision
to which the withheld communications pertain. See Access Reports v. DOJ, 926 F.2d 1192, 1196
(D.C. Cir. 1991). The Bureau “need only identify the decisionmaking process to which the withheld
documents contributed.” Elec. Frontier Found. v. DOJ, 890 F. Supp. 2d 35, 52 (D.D.C. 2012)
(quotation omitted); see also Am. Ctr. for Law & Justice v. DOJ, 325 F. Supp. 3d 162, 173 (D.D.C.
2018) (“The point of the deliberative-process privilege is to protect internal agency deliberations; it
would make no sense for the privilege to turn on whether the internal advice was ultimately
followed.”). The Bureau has met this requirement. For example, the documents in Category 30 were
used in the “process of formulating the Bureau’s positions, policies, and strategies for” the student
loan market. A138. Discussions about “policy matters are quintessentially deliberative.” ICM
Registry, LLC v. Dep’t of Commerce, 538 F. Supp. 2d 130, 135 (D.D.C. 2008); see also NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 150 (1975) (privilege applies to “process by which
governmental decisions and policies are formulated”) (quotation omitted).
Defendants also assert that the Bureau “made no attempt to segregate and produce factual
material” in documents withheld as deliberative. But the declaration that Defendants omitted
3

Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980), relied upon
by Defendants (Doc. 107 at 4), does not deal with a situation where (as here) the parties agreed that
categorical privilege logs would be allowed – which, as Defendants explained, was done
“specifically to avoid unnecessary burdens” (A133) – nor does it purport to set forth a bright-line
rule about what fields must be contained within a privilege log. Defendants categorical log shows
the level of detail they believe is sufficient to assert privileges, and their log is much less detailed
than the Bureau’s log. See A142-43. For example, Defendants asserted the bank examination
privilege in sweeping fashion over 6,044 documents (A143), without any description of the nature
of the deliberative communications that occurred between Defendants and their regulators, much
less any explanation of what they did to determine if the regulator wanted to assert the privilege.
See In re Wilmington Trust Sec. Litig., 2016 WL 9753979, at *4 (D. Del. 2016) (bank examiner
privilege is a “variant” of the deliberative process privilege) (citing Redland Soccer Club, Inc. v.
Dep’t of the Army, 55 F.3d 827, 853 n.18 (3d Cir. 1995)); In re Bankers Tr. Co., 61 F.3d 465, 472
(6th Cir. 1995) (privilege can be asserted only by the regulator)
3

 Case 3:17-cv-00101-RDM Document 110 Filed 11/02/18 Page 4 of 6

describes how the Bureau analyzed the documents described on its July 6 log to determine what
factual information, if any, could be segregated, as well as the results of that analysis for each
category. See A10-80 (¶¶ 45, 51, 58, 63, 68, 73, 78, 91, 92, 106, 112, 117, 122, 127, 132, 142, 150,
155, 160, 165, 174, 183, 186, 190, 217). This analysis resulted in production of documents with
segregable facts disclosed. To the extent any facts related to the alleged conduct in this case were
withheld, they reflect the Bureau’s internal and deliberative selection or evaluation of those facts,
which is privileged. See Ancient Coin Collectors Guild v. Dep't of State, 641 F.3d 504, 513 (D.C.
Cir. 2011) (allowing withholding of factual material “culled . . . from [a] much larger universe of
facts” and that “reflect[ed] an exercise of judgment as to what issues are most relevant to the predecisional findings and recommendations”) (quotation omitted); Elec. Frontier Found., 890 F.
Supp. 2d at 53 (agreeing with government that “employees’ deliberative process of selecting and
presenting facts” fell within privilege); Doc. 88 (May 4, 2018 Order) at 5-10. Additionally, there are
no facts about Defendants’ alleged conduct in these documents that Defendants do not already have
in their original form.
Defendants are also wrong to claim that there is any blanket prohibition on redacting or
withholding for non-responsiveness. Indeed, while Defendants contend that “[t]here is absolutely no
basis to do that,” they cite a single case which contains no such categorical rule, but rather
acknowledges that such redactions are allowed “in limited circumstances.” Doc. 107 at 5-6. And as
the Bureau explained in a letter to Defendants, those limited circumstances are present here. A8. As
the Bureau described, some Bureau document families cover both student loan servicing, as well as
topics unrelated to student loan servicing, simply by virtue of the fact that the Bureau deals with a
large number of markets. Id. Thus, “an email might include one responsive attachment, along with
various other attachments that relate to other markets (such as mortgage origination or payday
loans), investigations of entities that have no connection to this action, or internal personnel matters
(such as human resources issues).” Id. The Bureau further explained that redaction or withholding
of this information “is appropriate given the complete lack of relevance of such documents and
portions of documents to any claim or defense in this action, and also because the withheld
information may constitute or contain confidential supervisory information or confidential
investigative information relating to non-parties.” Id. Given the sensitivity and irrelevance of such
information, these redactions are appropriate. See, e.g., Dettmann v. DOJ, 802 F.2d 1472, 1474-75
(D.C. Cir. 1986) (allowing redaction of non-responsive portions of documents that “cover different
subjects [or] refer to people unrelated to plaintiff and her activities”) (quotation omitted); Schiller v.
City of NY, 2006 WL 3592547, at *7 (S.D.N.Y. Dec. 7, 2006) (upholding redaction of portions of
documents based on irrelevance of information).
Finally, Defendants’ arguments about the Bureau’s assertion of law enforcement privilege
are without merit. The Bureau is not using that privilege to withhold any information produced by
sources that relate to Defendants, or even any information relating to the practices alleged in the
Complaint. Portions of certain responsive documents included information about techniques or
procedures for law enforcement that are entirely unrelated to any issue in this lawsuit, such as the
identity of the Bureau’s law enforcement partners in unrelated investigations or subjects of
unrelated supervisory actions.
3.
Neither an in camera review nor appointment of a master is warranted. Because
Defendants have identified no legitimate basis to contest the Bureau’s productions and privilege
logs, an in camera review is not necessary. An in camera review “is generally disfavored” and “not
4

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warranted” where the agency has demonstrated “with reasonable specificity why the documents are
exempt, if the government’s claim of exemption is not contradicted in the record, and there is no
evidence of bad faith on the part of the agency.” Manna v. DOJ, 832 F. Supp. 866, 874 (D.N.J.
1993); see also Larson v. Dep’t of State, 565 F.3d 857, 870 (D.C. Cir. 2009) (“[W]hen the agency
meets its burden by means of affidavits, in camera review is neither necessary nor appropriate”)
(quotation omitted); Renal Care Grp., 696 F.3d at 527 (upholding deliberative process privilege
assertions without in camera review); AIDS Healthcare Found. v. Leavitt, 256 F. App’x 954, 956
(9th Cir. 2007) (same); Brinton v. Dep't of State, 636 F.2d 600, 606 (D.C. Cir. 1980) (same); Ctr.
for Pub. Integrity v. Fed. Election Comm’n, 2018 WL 4473515, at *4 (D.D.C. Sept. 18, 2018)
(same); EEOC v. FAPS, Inc., 2012 WL 1656738, at *32 (D.N.J. 2012) (same).
Defendants’ challenges to the Bureau’s privilege assertions can be resolved without in
camera review. The Court has held: “Even if there were policy debates in which agency staff took
positions favorable to Defendants, however, these statements would have no legal significance
because they would not be official agency positions.” Doc. 88 at 10. This holding did not turn on
whether guidance was issued; it expressly applied to guidance that was “not ultimately issued.” Id.
at 11. Likewise, intra-agency communications unrelated even to the issuance of possible guidance
have no relevance to this case. See United States v. Elsass, 2012 WL 353739, at *1 (S.D. Ohio
2012) (denying motion to compel production of intra-agency communications because “‘[a]ctions
or positions of which Defendants had no knowledge are simply irrelevant”) (quotation omitted);
SEC v. Nacchio, 704 F. Supp. 2d 1099, 1112 (D. Colo. 2010) (denying motion to compel production
“general communication[s] among SEC staff regarding accounting issues”). In any event, the
Bureau’s positions on the issues in this lawsuit were published in its Complaint; prior internal
discussions about those issues have no legal significance.
In addition, while Defendants claim a “need” for communications with ED regarding the
deliberative process leading to various public reports, they do nothing to elaborate upon that “need.”
See Doc. 107 at 6-7. None of the withheld communications contains any statement blessing
Defendants’ conduct or expressing a view that such conduct was reasonable – Defendants’ only
relevance argument. See 4/17/18 Hearing Tr. at 60. Defendants have not identified any portion of
the public reports that is related to the alleged conduct at issue in this case. Thus, Defendants have
not (and cannot) demonstrate that deliberations leading to the reports might contain information
about the government’s views of Defendants’ conduct. See Citizens Union of City of NY v. Attorney
Gen. of NY, 269 F. Supp. 3d 124, 171 (S.D.N.Y. 2017) (declining to order in camera review where
“Plaintiffs have failed to meet their burden of establishing how [the deliberative documents] are
relevant to the claims and defenses”).
With respect to Defendants’ argument that disclosure should be ordered because the Bureau
initiated this litigation, there is a difference between cases where the government’s conduct is the
subject of the litigation, and cases where the government, as a regulator, is suing a private party
regarding that party’s conduct. The cases relied upon by Defendants fall into the former category.
See Redland Soccer Club, 55 F.3d at 833-34 (lawsuit concerning alleged exposure to toxic waste
deposited by Army); United States v. Bd. of Educ. of City of Chicago, 610 F. Supp. 695, 697 (N.D.
Ill. 1985) (lawsuit concerning whether United States had complied with consent decree). In contrast,
where the government is merely the regulator, courts have frequently upheld assertions of the
deliberative process privilege because the issue in the case is the legality of the private party’s
conduct, and thus the government’s nonpublic deliberations are irrelevant. See, e.g., Int’l Paper Co.
5

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v. Fed. Power Comm’n, 438 F.2d 1349, 1358-59 (2d Cir. 1971).
In a similar vein, a special master is not warranted to adjudicate issues that are without
merit. See, e.g., Milliron v. T-Mobile USA, Inc., 2009 WL 3345762, at *23 (D.N.J. Sept. 10, 2009)
(“the Court need not sift through reams of [documents]” to adjudicate an unmeritorious argument,
“nor need it appoint a special master to do so”).
Finally, in considering the necessity of an in camera review or a special master, it is
important to consider where this case stands:
•

Fact discovery is scheduled to close in approximately one month. Yet, just within the past
month, Defendants produced approximately 455,000 documents in response to the requests
for production served seventeen months ago. The Bureau is diligently reviewing these
documents and noticing additional depositions as needed.

•

In September, Defendants provided phone numbers for former employees – information that
the Bureau had requested six months earlier. The Bureau is working to contact some of the
former employees, and expects to add witnesses to its Rule 26(a)(1) disclosures based on the
interviews that are being conducted. Defendants likely will seek to depose those individuals.

•

Within the past few weeks, Defendants agreed to produce consumer data requested over
eight months ago. 4 The Bureau does not know when Defendants will begin or complete that
production, but when they do, the Bureau will need to work with its experts to analyze that
data. During the investigation, Defendants represented that their data was so complex that it
took their employees – who had much greater familiarity with the data – months to analyze.

The Bureau respectfully submits that the parties’ efforts should not be diverted from the huge
amount of work that is left to be completed. The Bureau has complied with all of its discovery
obligations, and Defendants have presented no legitimate argument to the contrary.
Respectfully submitted,
/s/ Nicholas Jabbour

4

As the Court is aware, one roadblock that the Bureau faced was that Privacy Act issues
purportedly had to be resolved. However, after the Court’s ruling on Privacy Act issues, Navient
indicated that the burden of notifying borrowers whose data would be implicated by the Privacy Act
was too significant such that Navient would be de-identifying the data. While the Bureau agreed to
de-identification, it was perplexing that Navient had raised the Privacy Act as an issue over the
course of several months, when there was apparently, in Navient’s view, a way to produce the data
that would avoid implicating the Privacy Act entirely. In the end, once Navient committed to
actually discussing the substance of the Bureau’s data requests in a meaningful way, it became
evident that the discussion could have proceeded eight months earlier had Navient not been so
committed to this (and other) procedural roadblocks.
6