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Are Inter-Department DOJ Communications Attorney Work Product?

By Robyn Hagan Cain | Last updated on

Does the attorney work product privilege protect communications between Justice Department lawyers who are assigned to provide legal assistance to federal agencies that have conflicting interests?

The Seventh Circuit ruled this week that communications in such situations can be privileged.

Attorney work product consists of "the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Our legal system believes that an opposing party "shouldn't be allowed to take a free ride on the other party's research, or get the inside dope on that party's strategy, or ... invite the [trier of fact] to treat candid internal assessments of a party's legal vulnerabilities as admissions of guilt."

But since the purpose of the privilege is to hide internal litigation preparations from adverse parties, disclosing work product to an adverse party means forfeiting the privilege.

Menasha Corporation claims that reasoning should apply to communications between enforcement division and defense division attorneys within the Justice Department.

In 2010, the U.S. and the state of Wisconsin filed suit against Menasha and other entities. The suit charged that the defendants had polluted the 39-mile long Lower Fox River, plus 1,000 square miles of Green Bay, thus incurring liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as the Superfund Law. The total damage to the site is estimated at more than $1.5 billion.

Several weeks after filing the Superfund suit, DOJ submitted a proposed consent decree that it had negotiated with two of the defendants. As part of the settlement, the U.S. offered to contribute $4.5 million to the cleanup of the polluted site, in recognition that federal agencies might have contributed to the pollution.

Menasha opposed the consent decree, arguing that the federal agencies' activities increased the costs of the pollution at the Superfund site by far more than $4.5 million.

Menasha suspects collusion during the DOJ negotiations that led up to the modest estimate of the government's liability. It wants the DOJ communications on the matter. DOJ says that the communications are privileged. Menasha maintains any work product privilege was forfeited when lawyers in the separate defense and enforcement litigation sections -- effectively adversaries -- shared the information.

The Seventh Circuit Court of Appeals disagreed.

Here, the appellate court reasoned that information in the nature of attorney work product that was exchanged between DOJ lawyers was not information exchanged among adverse parties. Therefore, it is privileged.

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