In Re Subpoena Duces Tecum Served on the Office of the Comptroller of the Currency

On Petition FOR ReheaRing

SILBERMAN, Circuit Judge:

The government’s petition for rehearing raises one point that calls for a response. We held that the government’s deliberative process privilege does not apply when a cause of action is directed at the government’s intent. We explained that the privilege had developed in and applies to circumstances where the government decision-making process is “collateral” to a plaintiffs claim. The government suggests that the term “collateral” is imprecise and that the deliberative process privilege has been employed in circumstances where the…