The opinion of the court was delivered by: Hon. Joseph H. Rodriguez
This matter comes before the Court on two appeals pursuant to Local Civil Rule 72.1(c), by Defendant Sensient Colors, Inc. ("Sensient"). Defendant Sensient appeals [Dkt. Entry No. 130] from the January 28, 2009 Opinion and Order of Magistrate Judge Schneider [Dkt. Entry No. 128], which: (1) granted Christine Todd Whitman's Motion to Quash Subpoena and to Bar her Deposition; (2) granted in part and denied in part Jane M. Kenny's Motion to Quash Subpoena and to Bar her Deposition; and (3) granted in part and denied in part David Rosoff's Motion for Protective Order. Defendant Sensient also appeals [Dkt. Entry No. 136] from the February 13, 2009 Opinion and Order of Magistrate Judge Schneider [Dkt. Entry No. 129], which denied Sensient's Motion for Leave to Amend its responsive pleading.
This case presents a unique set of facts demanding application to a novel area of law. Parties and non-parties alike have an interest in its outcome. For the reasons expressed below, the magistrate judge is affirmed in part and reversed in part.
Because the parties and relevant non-parties are intimately familiar with this case, an exhaustive recitation of the facts and procedural history is unnecessary. Only those facts that are necessary to the analysis of this review are included herein.*fn1
In March of 2007, the United States filed this cost recovery action against Sensient under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"). See generally 42 U.S.C. §§ 9601-9675 (2000). Alleging that Sensient is responsible for contaminating the General Color Site (hereinafter "Site" where appropriate) in Camden, New Jersey, the Government via the Environmental Protection Agency ("EPA") seeks approximately $16 million in costs resulting from its removal action activities at the Site.
Sensient objects to the EPA's characterization of the Site project as a "removal action." Sensient underscores the eight years and $16 million spent by the EPA on the Site, and contends that both are incongruous with a "removal action" under CERCLA. A cursory reading of the statute supports Sensient's view. For example, CERCLA prohibits the EPA from recovering any removal costs in excess of $2 million, or 12 months in duration. See 42 U.S.C. § 9604(c)(1).*fn2 Sensient further contends that the EPA deliberately mischaracterized its response activity at the Site as an emergency removal action in order to redevelop the Site--and per force, the City of Camden--at Sensient's expense. In support of this contention, Sensient relies on an e-mail from David Rosoff, the EPA On-Scene Coordinator for the Site. That highly relevant e-mail provides:
It was a remedial site - I just completed with removal funds over a 6 year period (a very fast RI/FS-RD/RA but a very slow removal). The secret is spread it out and they don't realize how much your spending - 9 million is a drop in the bucket for you but here I am looked at like I have 3 heads. Preremedial didn't want to touch it so we did it ourselves. Normally I could have never done this with Dick as a boss but with the support of Jane and Anthony he couldn't say no. There is no real 2 million dollar limit so I have learned. I'll be looking in NY this spring.
See Sensient II, 2009 WL 303689, at *1 n.4. When viewed alongside Jane M. Kenny's September 30, 2003 letter to then-Camden Chief Operating Officer Randy Primas,*fn3 Sensient contends there is sufficient evidence that the EPA deliberately and purposely mischaracterized its response at the Site as a "removal action" instead of a "remedial action." Relatedly, Sensient contends that "Kenny falsely certified that proposed EPA action associated with the . . . Site constituted a time critical removal . . . thus enabling expenditures to exceed statutory time and spending limits." (Sensient Br. 8.)
Upon discovery of the Rosoff e-mail and the Kenny letter, Sensient filed a motion for leave to amend its answer and to file a third-party complaint. [Dkt. Entry No. 66.] Sensient also served subpoenas and deposition notices on Whitman, Kenny and Rosoff. Motions to quash were filed by Whitman and Kenny, and a motion for a protective order was filed by Rosoff. [Dkt. Entry Nos. 85, 91, 94.] Judge Schneider denied Sensient's motion to amend, [Dkt. Entry No. 129], and granted in part and denied in part the motions to quash and motion for a protective order. [Dkt. Entry No. 128.] These decisions form the bases of this appeal.*fn4
This Court reviews decisions on nondispositive matters by a magistrate judge under the "clearly erroneous or contrary to law" standard.*fn5 See Andrews v. Goodyear Tire & Rubber Co., 191 F.R.D. 59, 67 (D.N.J. 2000) (citing 28 U.S.C. § 636(b)(1)(A) (West 1999)); see also Fed. R. Civ. P. 72; L. Civ. R. 72.1(c)(1)(A). In this regard, "the magistrate judge is accorded wide discretion." Miller v. Beneficial Mgmt. Corp., 844 F. Supp. 990, 997 (D.N.J. 1993) (citing NLRB v. Frazier, 966 F.2d 812, 815 (3d Cir. 1992)). A magistrate judge's decision is clearly erroneous "when, although there may be some evidence to support it, the reviewing court, after considering the entirety of the evidence, is 'left with the definite and firm conviction that a mistake has been committed.' " See Kounelis v. Sherrer, 529 F. Supp. 2d 503, 518 (D.N.J. 2008) (citing Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J. 1990) quoting United States v. Gypsum Co., 333 U.S. 364, 395 (1948)). A magistrate judge's decision is contrary to law when he or she has "misinterpreted or misapplied applicable law." Kounelis, 529 F. Supp. 2d at 518 (citing Gunter v. Ridgewood Energy Corp., 32 F. Supp. 2d 162, 164 (D.N.J. 1998)). It should be noted that "[p]articular deference is accorded to magistrate judges on discovery issues." Costa v. County of Burlington, 584 F. Supp. 2d 681, 684 n.2 (D.N.J. 2008) (citing Boody v. Twp. Of Cherry Hill, 997 F. Supp. 562, 573 (D.N.J. 1997)). The burden of demonstrating clear error rests with the appealing party. Kounelis, 529 F. Supp. 2d at 518.
A. Motions to Quash & Motion for a Protective Order Sensient appeals the magistrate judge's January Opinion and Order restricting the depositions of Whitman,*fn6 Kenny, and Rosoff.*fn7 Sensient first contends the magistrate judge committed reversible error by applying the Morgan Doctrine to former high-ranking government officials. In doing so, Sensient takes issue with the magistrate judge's reliance on relevant case law. Sensient cites public policy concerns that, in its view, militate "in favor of limiting the applicability of the Morgan Doctrine to current government officials." (Sensient Br. 14.) Next, Sensient alternatively contends that, even if Morgan applies to former high-ranking government officials, "extraordinary circumstances" warrant deposing Kenny. (Id. at 9.) As for Rosoff, Sensient acknowledges that Courts often stay discovery pending determinations of qualified immunity. (Id. at 8.) Nevertheless, Sensient contends that it is appropriate to depose Rosoff without delay. (Id. at 8-9.)
In response, the Government contends the magistrate judge's application of Morgan to former high-ranking government officials is neither clearly erroneous nor contrary to law. (Gov't. Br. 3.) The United States alternatively contends that, even if Morgan is inapplicable to former high-ranking government officials, Sensient has failed to demonstrate why it is entitled to depose Whitman. Accordingly, the United States contends that the decision granting the motion to quash Whitman's deposition should be affirmed.
Regarding Kenny, a non-party in the action, she agrees that Morgan applies to former high-ranking government officials. (Kenny Br. 10.) Kenny contends that "ample authority exists . . . to apply Morgan to former high-ranking government officials." (Id.) Kenny additionally contends that Sensient has made no showing that she possessed first-hand knowledge essential to the case in order to warrant the taking of her deposition. (Id. at 13.) These contentions are examined below.
1. Applicability of the Morgan Doctrine to Former High-Ranking Government Officials
There is wide agreement among the Circuits that current high-ranking government officials should not be subject to the taking of depositions absent extraordinary circumstances. See Bogan v. City of Boston, 489 F.3d 471, 423 (1st Cir. 2007) (citing Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 5765, 586 (D.C. Cir. 1985); In re United States (Holder), 197 F.3d 310, 313 (8th Cir. 1999); In re FDIC, 58 F.3d 1055, 1060 (5th Cir. 1995); In re United States (Kessler), 985 F.2d 510, 512 (11th Cir. 1993)); see also Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th Cir. 1979) ("Heads of government agencies are not normally subject to deposition."). This agreement stems from the landmark case of United States v. Morgan, 313 U.S. 409, 422 (1941). In that case, the Supreme Court strongly cautioned against the taking of depositions of high-ranking government officials. Id. As its primary rationale, the Court recognized the importance of protecting the decision-making process of such officials. Id. The Court feared the effects of nettlesome mind-probing and analogized the high-ranking government official to a judge; "[j]ust as a judge cannot be subjected to such scrutiny, so the integrity of the administrative process must be equally respected." Id.
Since Morgan, other courts have discussed additional rationales for the mental process privilege. See Buono v. City of Newark, 249 F.R.D. 469, 470 n.2 (D.N.J. 2008) (noting the interest in "ensuring that high level government officials are permitted to perform their official tasks without disruption or diversion.") (citations omitted); accord United States v. Wal-Mart Stores, No. 01-152, 2002 WL 562301, at *1 (D.Md. Mar. 29, 2002) (fearing "litigation-related burdens" might "render their time . . . for government service significantly diluted or completely consumed."). The court in Wal-Mart Stores also observed that a contrary rule might discourage otherwise upstanding individuals from public service. Id. at *3.
Relying on the foregoing, the magistrate judge opined--"the goal of limiting inquiries into a decision maker's thought process is as equally applicable to a former employee as it is to a current employee." Sensient II, 2009 WL 303689, at *3. Consequently, he extended the Morgan Doctrine to former high-ranking government officials Whitman and Kenny. Id. at *4-*6.
This decision is neither clearly erroneous nor contrary to law. First and foremost, the Third Circuit has yet to speak on this issue. In the absence of controlling Third Circuit precedent, there can be no error in examining the persuasive authority of other jurisdictions. See Am. Fire and Cas. Co. v. Material Handling Supply, Inc., 2007 WL 2416434, at *1 (D.N.J. Aug. 16, 2007) (holding same). Here, the magistrate judge did just that; he accepted persuasive authority from the District of Maryland. See Wal-Mart Stores, 2009 WL 562301, at *3 (applying Morgan to former high-ranking officials and noting that "[i]f the immunity Morgan affords is to have any meaning, the protections must continue upon the official's departure from public service."). The magistrate judge then distinguished the cases upon which Sensient relied, see generally Toussie v. County of Suffolk, No. 05-1814, 2006 WL 1982687 (E.D.N.Y. July 13, 2006); Sanstrom v. Rosa, No. 93-7146, 1996 WL 469589 (S.D.N.Y. Aug. 16, 1996), and observed that in each circumstance the former official possessed such personal knowledge that Morgan protection was unavailing. Sensient I, supra, at *3. Sensient contends the magistrate judge "unfairly dismiss[ed]" these cases because, in its view, Toussie and Sanstrom unequivocally deny the application of Morgan to former high-ranking government officials. (Sensient Br. 13-14.) A brief examination of these cases is therefore necessary.
In Toussie, the district court confronted the issue of whether a former county executive should be subject to deposition. Toussie, 2006 WL 1982687, at *1. The court opined, "The specific rules governing depositions of high level government officials do not apply to Mr. Gaffney as he is no longer the County Executive." Toussie, supra, at *2. The court then stated, "that is not to say that the depositions of former government officials should be lightly granted." Id. Continuing in this vein, the court observed that "[g]enerally, the depositions of former government officials are granted where the official has been personally involved in the events at issue in the case." Id. (citing Gibson v. New York Police Officer Carmody, 1991 WL 161087, at *1 (S.D.N.Y. Aug. 14, 1991)). Based on that general rule, the Court permitted the deposition of the former county executive because of his personal involvement in the case. Id.
Similarly, in Sanstrom the Southern District of New York allowed the deposition of former Governor Mario Cuomo where it was "critical" that the plaintiffs prove his "personal involvement in order to recover damages under 42 U.S.C. § 1983." See Sanstrom, 1996 WL 469589, at *5. The underlying claims in that case alleged deprivations of due process and equal protection stemming from the New York State Division of Human Rights' delay in "investigating and processing" claims of discrimination. Id. at *1. The Court did not apply Morgan to former Governor Cuomo; rather, it reasoned in relevant part, "because Mr. Cuomo is no longer governor, he cannot claim this privilege." Id. at *5. The Court then observed, even if he was still Governor, extraordinary circumstances--i.e. personal involvement--warrant the taking of his deposition.*fn8 Id. ("[H]e possesses particular information necessary to the development . . . of the plaintiff's case. . ." (quoting Am. Broad. Co's. v. United States Info. Agency, 599 F. Supp. 765, 769 (D.D.C. 1984))) (brackets omitted).
Although the courts in Toussie and Sanstrom addressed the applicability of Morgan to former officials, the greater part of the analysis was focused on the personal involvement or knowledge of the deponent. It was this factor that the courts deemed critical. The magistrate judge committed no error by distinguishing these cases accordingly.
Yet, even assuming Sensient is correct that Toussie and Sanstrom unequivocally deny the application of Morgan to former high-ranking government officials, the magistrate judge's decision to accept Wal-Mart Stores as persuasive over Toussie and Sanstrom is neither clearly erroneous nor contrary to law. In contrast to Toussie and Sanstrom, Wal-Mart Stores provides an extensive analysis of the Morgan Doctrine, including Morgan's underlying rationale which, in the view of the District of Maryland, applies in equal force to current and former high-ranking government officials. Given the lack of controlling Third Circuit precedent, and considering an additional case from the Supreme Court of Appeals of West Virginia, see Arnold Agency v. West Virginia Lottery Comm'n, 206 W.Va. 583, 599, 526 S.E.2d 814, 830 (1999) ("former high- ranking government administrators . . . have a legitimate interest in avoiding unnecessary entanglements in civil litigation"), this Court finds no reversible error in the magistrate judge's ruling that Morgan applies to former high-ranking government officials. This portion of the January Opinion and Order is therefore affirmed.
Having found that Morgan applies to former high-ranking government officials, there can be no doubt that Morgan applies to Ms. Whitman, the former Administrator of the EPA. The magistrate correctly observed that other courts apply Morgan to government officials "whose rank does not surpass the Administrator of the EPA." Sensient I, supra, at *4 (citing Franklin Sav. Ass'n v. Ryan, 922 F.2d 209, 212 (4th Cir. 1991) (applying Morgan to Director of the Office of Thrift Savings); Central Valley Chrysler Valley Jeep, Inc. v. Witherspoon, CV-F-04-6663, 2006 WL 2619962, at *2-*3 (E.D.Cal. Aug. 25, 2006) (applying Morgan to Executive Officer of the California Air Resources Board)). Sensient concedes as much in its Brief. (Sensient Br. 17 n.7.) Moreover, Sensient has submitted no evidence suggesting Ms. Whitman had any personal involvement in or knowledge relevant to the General Color Site. Finding no error in the magistrate judge's ruling granting Ms. Whitman's motion to quash, the Court affirms that portion of the Opinion and Order.
Review of the magistrate judge's January Opinion and Order is now confined to the rulings restricting the depositions of Kenny and Rosoff. It is with these rulings, respectfully, that the Court finds reversible error.
The magistrate judge granted in part and denied in part Jane M. Kenny's motion to quash. Sensient II, supra, at *8. Kenny's motion to quash her subpoena and bar her deposition was granted. Because Kenny had direct personal involvement in the Site, however, the magistrate judge envisioned that her deposition might eventually be justified. Id. ("The Court is not foreclosing the prospect that future developments may justify Kenny's deposition."). As such, the magistrate judge denied in part the motion to quash. Id. at *9 (quashing Sensient's subpoena "without prejudice to its right to re-new its request for Kenny's deposition.").
Sensient contends the magistrate judge's ruling was clearly erroneous or contrary to law. (Sensient Br. 9-13.) Sensient advances two grounds to support this contention. First, Sensient contends the magistrate judge erred by finding Jane M. Kenny to be a former high-ranking government official. (Sensient Br. 18) In Sensient's view, "Kenny was not of sufficient rank to warrant the extraordinary protection of the Morgan Doctrine." (Id.) Second, Sensient contends that even if she warrants the protection of Morgan, extraordinary circumstances justify the taking of her deposition. Kenny contests both grounds. These contentions are examined below.
i. Status of Jane M. Kenny
Sensient contends Kenny is not a high-ranking government official. (Sensient Br. 18.) Sensient advances several arguments in support of this contention. First, Sensient estimates Kenny's position of EPA Regional Administrator--of which there are ten in the Nation--to be a Level IV position consistent with 5 U.S.C. § 5315.*fn9 (Sensient Br. 19 n.8.)
Level IV includes approximately 342 officials. (Id.) By contrast, Level I includes only twenty-one officials, including such high-ranking officials as the Secretary of State. (Id.) While Sensient acknowledges the need to apply Morgan to the relatively few Level I employees, it contends the application of Morgan to Level IV employees "unfairly limits the broad discovery rights at the heart of our judicial system and fosters an unwarranted climate of governmental secrecy." (Id. at 20.) This public policy concern, Sensient contends, militates in favor of deposing Kenny.
In support, Sensient relies on In re Kessler.*fn10 See 100 F.3d 1015, 1017 (D.C. Cir. 1996) (rejecting FDA Commissioner's argument that he may appeal a district court's discovery order without first being held in contempt). There, the D.C. Circuit refused to extend the privilege of appealing a discovery order without first being held in contempt to the FDA Commissioner. See Kessler, 100 F.3d at 1017. The D.C. Circuit observed that the FDA Commissioner holds a Level IV ranking, "the same grade as the typical secretary of a department or member of a Commission. . ." Id. The court further observed that the FDA Commissioner is three levels below the Secretary of Health and Human Services. Id. at 1017-18. Fearing a slippery slope in the absence of a well-defined stopping point, the Court did not extend the privilege. Id. at 1017 (contrasting the situation of the FDA Commissioner with that of the President); see also United States v. Nixon, 418 U.S. 683, 692 (1974) (allowing President Nixon to appeal a discovery order without first being found in contempt).
Here, the magistrate judge correctly observed that the D.C. Circuit "did not address whether the FDA Commissioner was a high-ranking government official subject to the protections in Morgan." Sensient II, supra, at *4. Instead, the court addressed "whether the FDA Commissioner could appeal the lower court's order permitting his deposition before he was found in contempt of court." Id. (citing Kessler, 100 F.3d at 1017-18). The court made this point clear in the final sentence of its Opinion. Kessler, 100 F.3d at 1018 ("We deny the petition, and we, of course, express no view on the merits of the discovery order, including Dr. Kessler's status under Simplex, see 766 F.2d at 586.").
Sensient acknowledges Kessler did not deal with the instant issue before the Court. (Id. at 18.) Rather, the case cited by the D.C. Circuit in Kessler, supra, at 1018 (citing Simplex Time Recorder Co. v. Sec'y of Labor, 766 F.2d 575, 586 (D.C. Cir. 1985) (applying Morgan to certain "top Department of Labor officials")), dealt with that issue. Nevertheless, Sensient contends the slippery-slope rationale of Kessler is equally applicable to the instant issue--"If the Morgan Doctrine applies to an EPA Regional Administrator, to whom in the executive branch does it not apply?" (Id. at 18.) Phrased somewhat differently, where should the courts draw the line?
Sensient proposes the line be drawn at cabinet-level officers. (Sensient Br. 19.) Citing Citizens for Responsibility and Ethics in Washington v. Cheney, 580 F. Supp. 2d 168 (D.D.C. 2008), Sensient underscores dicta suggesting as much. (Sensient Br. 19.) In Citizens, the district court rejected the contention that the Director of the Presidential Materials Staff was a high-ranking government official subject to Morgan. Id. at 179.
The court reasoned, "[s]he is not the sort of cabinet-level officer over which the D.C. Circuit's decisions contemplate protection from discovery." Id. (emphasis added). The court also rejected the contention that David Addington, the Vice-President's Chief of Staff, was subject to Morgan protection. Id. In that instance, the court reasoned, "he is not a cabinet-level officer, and he is uniquely qualified to address the areas of inquiry identified as appropriate for discovery in this case."*fn11 Id. (emphasis added). Sensient hangs its hat on the twice used "cabinet-level officer" language in advancing its argument. This dicta, it contends, limits the application of Morgan to those officers alone.
This contention is unavailing. The relevant authority does not support such a constrained view of Morgan application. Notwithstanding the district court's dicta, other courts, including those sitting in the District of Columbia, have extended Morgan to officials below cabinet-level rank. See United States v. Wal-Mart Stores, 2002 WL 562301, *1 (D. Md. March 29, 2002) (treating chair of federal Consumer Product Safety Commission as a high-ranking government official); Alexander v. F.B.I., 1999 WL 270022, *1 (D.D.C. Apr. 21, 1999) (treating Deputy White House Counsel as a high-ranking government official); Am. Broad. Cos. v. United States Info. Agency, 599 F. Supp. 765, 769 (D.D.C. 1984) (treating Director of United States Information Agency as a high-ranking government official); Sykes v. Brown, 90 F.R.D. 77, 78 (E.D.Pa. 1981) (treating head of the Defense Logistics Agency as a high-ranking government official).
In the state government context, Morgan is similarly unconstrained. See Buono v. City of Newark, 249 F.R.D. 469, 471 (D.N.J. 2008) (treating Mayor of Newark as a high-ranking government official subject to Morgan); Coleman v. Schwarzenegger, 2008 WL 4300437, *4 (E.D. Cal. Sept. 15, 2008) (treating Chief of Staff to California Governor as a high-ranking government official); Toussie v. County of Suffolk, 2006 WL 1982687, *1 (E.D.N.Y. July 13, 2006) (treating county executive as a high-ranking government official). Much to Sensient's chagrin, there is no hard and fast rule when it comes to applying Morgan to a particular government official. Cf. Byrd v. District of Columbia, ---F.R.D. ----, 2009 WL 1809901, at *4 (D.D.C. 2009) (acknowledging "no standard has been established for determining if an official is high-ranking"). The determination is done on a case-by-case basis.
In keeping with that standard, the magistrate judge properly analyzed Kenny's official position before finding it to be subject to Morgan. The EPA Regional Administrator for Region 2 reports directly to the EPA Administrator, who in turn reports directly to the President of the United States. The position is one of ten which report directly to the EPA Administrator. Without error, the magistrate judge relied on these facts when he found Kenny to be a former high-ranking government official. Sensient II, 2009 WL 303689, at *6. The magistrate judge also relied in part on Simplex from the D.C. Circuit. Sensient II, supra, at *6 (citing Simplex, 766 F.2d at 586-587). There, the court extended Morgan to certain government officials in the Department of Labor. Simplex, supra, at 586. One of those officials was the Regional Administrator of OSHA. Id. at 586-87. The magistrate judge tacitly reasoned by analogy that if the Regional Administrator of OSHA enjoys the protections of Morgan, so too should the Regional Administrator of the EPA. See Sensient II, supra, at *6. That analogy fortified his decision to apply Morgan to Kenny.*fn12 Id. His decision is without error. Jane M. Kenny, former EPA Regional Administrator for Region 2, is a former high-ranking government official. Accordingly, her deposition shall only be allowed upon a showing of extraordinary circumstances.
ii. Extraordinary Circumstances
Federal Rule of Civil Procedure 26(b)(1) provides in relevant part, "Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense. . ." Fed. R. Civ. P. 26(b)(1). Depositions of parties and non-parties alike serve as efficient tools in this discovery process. They elicit key facts, thereby progressing cases from complaint to settlement or judgment. Attempting to balance the need for broad discovery with the need to protect high-ranking government officials from nettlesome deposition taking, Morgan stands for the proposition that high-ranking government officials should not be subject to the taking of depositions absent extraordinary circumstances. See Bogan v. City of Boston, 489 F.3d 471, 423 (1st Cir. 2007).
Like the determination of whether an individual is a high-ranking government official, the determination of whether extraordinary circumstances exist is done on a case-by-case basis. This case-by-case approach applies to both current and former high-ranking government officials. Several factors assist the court's determination. For example, in this District, a five-prong inquiry has developed to determine whether extraordinary circumstances exist in a given case. See Buono v. City of Newark, 249 F.R.D. 469, 471 n.2 (D.N.J. 2008). Consistent with that inquiry, a party seeking the deposition of a high-ranking government official must show: (1) the official's testimony is necessary to obtain relevant information that is not available from another source; (2) the official has first-hand information that cannot reasonably be obtained from other sources; (3) the testimony is essential to the case at hand; (4) the ...