In Appleton Papers, Inc. v. EPA, 702 F.3d 1018 (7th Cir. 2012) (No. 12-2273), the Seventh Circuit held that the government’s disclosure of a portion of a non-testifying expert’s work product did not result in broader waiver for the purposes of a FOIA request.  After the government alleged that plaintiff API and seven other companies caused $1 billion in contamination, the government hired a consultant that prepared reports on the companies’ respective responsibility for the contamination.  The government cited to a portion of the consultant’s reports in two consent decrees with other companies.  API unsuccessfully sought discovery of these reports by challenging a consent decree between the government and another company.  In this matter, API sought the same documents pursuant to FOIA, and the government asserted work product protection pursuant to exemption 5 of FOIA.  API argued that it had substantial need for the documents, and in the alternative, the government’s disclosure resulted in subject matter waiver.  The Seventh Circuit disagreed, explaining that although a requester may have access to information that would be discoverable in litigation subject to a showing of “relevance” in a “normal” case, a requester cannot make fairness arguments related to a hypothetical litigant; nor can it assert that the requester would be entitled to the document in litigation with the government.  Each member of the public is equally entitled to make a FOIA request.  Therefore, individual “substantial need” cannot overcome the work product protection in the FOIA context because it would require proof beyond “relevance.”  Further, disclosure of some work product does not necessarily result in broad subject matter waiver, particularly where, as here, the government had not exposed work product relating to all companies.  The court added that finding subject matter waiver under these circumstances would have the “deleterious effect” of discouraging the government from settling with PRP’s for fear that, in entering consent decrees, it would have to release all related information to parties it wants to take to trial.