A federal court in Wisconsin has ordered the U.S. Department of Justice (DOJ) to produce documents sought under the Freedom of Information Act (FOI A), ruling that communications between attorneys at DOJ, who represent separate client agencies with adverse interests in the same litigation, are not privileged. Menasha Corp. v. DOJ, No. 11-682 (E.D. Wis. 1/26/12).
The FOI A request concerned documents related to a proposed Comprehensive Environmental Response, Compensation and Liability Act (CERCL A) consent decree involving the Fox River CERCL A site. Plaintiffs, who were potentially responsible parties (PRPs) at the site, sued after DOJ withheld approximately 1,300 documents of the nearly 5,000 requested, arguing that they were privileged because they were sent between attorneys in DOJ’s Environmental Enforcement Section (EES ) and its Environmental Defense Section (EDS) and to agency clients including the Environmental Protection Agency (EPA), U.S. Army Corps of Engineers (Corps) and General Services Administration.
The court disagreed with DOJ, finding that disclosure of otherwise privileged information to a third-party waived attorney-client privilege. Because the United States had competing interests in the case, it had separate counsel for EES and EDS independently representing the interests of their respective client agencies in the same manner as other adverse parties. According to the court, EPA (in its enforcement capacity) and the Corps “(as a PRP) are Executive Branch agencies with adverse interests. Under CERCL A, the EPA may seek joint and several liability against any PRP and should seek to impose the maximum liability appropriate against any PRP,” including the other federal agencies, which would, in their self-interest, seek to minimize their liability.