Friday, February 22, 2013

Menasha Corporation v. DOJ

Menasha Corporation v. DOJ - Feb 20: In the U.S. Court of Appeals, Seventh Circuit, Case No. 12-1720. Appeal from the United States District Court for the Eastern District of Wisconsin. As explained by the Appeals Court, this appeal is about whether the attorney work product privilege protects from pretrial discovery work product exchanged between Justice Department lawyers who are assigned to provide legal assistance to Federal agencies that have conflicting interests.
    In 2010 the United States, on behalf of U.S. EPA and the Department of the Interior, filed, jointly with the State of Wisconsin, a suit in a federal district court in Wisconsin against a number of public and private entities. The suit (United States v. NCR Corp., No. 10-C-910, E.D. Wis.) charged that the defendants had polluted the 39-mile long Lower Fox River, plus 1000 square miles of Green Bay (both bodies of water in Wisconsin), with PCBs (polychlorinated biphenyls), a toxic chemical, and that by doing so they had incurred liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).
    As part of a settlement agreement, embodied in a consent decree the United States offered to contribute $4.5 million to the clean up of the polluted site. The Appeals Court notes that a consent decree requires judicial approval. A court considering a proposed CERCLA consent decree must ensure that it was negotiated fairly. Menasha opposes the proposed consent decree, which has not yet been approved and "contends that the federal agencies' activities increased the costs of the pollution at the Superfund site by far more than $4.5 million, which is only three-tenths of one percent of the estimated potential liability of all
the polluters of the site." The Appeals Court notes that Menasha's opposition to the proposed decree is based on suspicions concerning the bona fides of the negotiations within the Justice Department that led up to the modest estimate of the government's liability.
    The team of lawyers in the Justice Department's Environment and Natural Resources Division that is handling the government's case is drawn from two of the Division's sections: the Environmental Enforcement Section, which represents the United States in suits to enforce environmental laws, and the Environmental Defense Section, which defends the United States from suits to enforce
those laws. The case involves Menasha's attempt to obtain communications back and forth between the two sections.
    In its conclusion and reversal, the Appeals Court rules, "The Justice Department contends that some of the documents sought by Menasha are also protected by other common law privileges, such as the attorney client privilege and the deliberative process privilege, and also by the privilege for information the disclosure of which could interfere with federal law enforcement. 5 U.S.C. § 552(b)(7)(A). We need not consider these contentions, because all the documents at issue are protected by the work product privilege."
    The Appeals Court explains earlier in the opinion that, "Were Menasha's position sound, the Justice Department could never shield attorney work product in a case like this -- a case, not unusual, in which the federal government by virtue of its size and diversity has internal conflicts -- without a crippling reorganization of the Department. Suppose the Department decided (were
we to affirm the district court) that to protect its work product it must create an impermeable membrane between the enforcement section and the defense section. Each section would have to draft its own proposed consent decree. . ."
    Access the complete opinion (click here). [#Remed, #CA7]
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