DOJ attorneys representing the United States Army Corps of Engineers (the "Corps") and the United States Environmental Protection Agency ("EPA") found themselves unable to rely on the attorney work product, attorney-client, or deliberative process privileges to avoid disclosure of internal communications relating to a pending CERCLA consent decree. In Menasha Corporation, et al. v. United States Department of Justice(E.D. Wis. 2012), plaintiffs filed FOIA requests seeking disclosure of communications between the Corps and EPA relating to a consent decree, including communications between DOJ attorneys representing the two government entities. The DOJ argued that it was entitled to withhold disclosure of these attorney communications pursuant to the above-mentioned three privileges. Plaintiffs argued that the DOJ lawyers represented separate client agencies with adverse interests in the litigation and that a party's disclosure of privileged communications to an adverse party typically waives the applicable privilege.
The court agreed, noting that EPA (in its enforcement capacity) and the Corps (as a PRP) are Executive Branch agencies with competing interests. According to the court, "attorneys who represent parties with adverse interests waive attorney-client and work product privileges as to documents they willingly share with their adversaries." The court found DOJ's argument that it represented a single client, the United States, unavailing. Here, DOJ's Environmental Enforcement Section is responsible for coordinating enforcement efforts whereas the Environmental Defense Division is responsible for coordinating defense litigation strategies. Because the United States has competing interests in this case, it properly had separate counsel from the Enforcement Section and the Defense Division independently representing the interests of both respective agencies. However, because the interests of these two agencies were adverse, the court found that communications between them were not privileged and had to be disclosed.
This decision will have obvious implications at any site where there is a government agency PRP. It might also cause DOJ lawyers to be more careful with respect to internal communications. To see a copy of this decision, please click here.