Sometimes It's Not a Unitary Government

more+
less-

For several decades now, the United States has taken the position that communications and documents exchanged in Superfund matters between government lawyers representing the US EPA and government lawyers representing federal PRPs are privileged. Specifically, the government has argued that both of these sets of government lawyers represent the same party -- the United States, which is a unitary government -- and thus their communications are protected as attorney-client communications. That unitary government position was squarely rejected earlier this week in Menasha Corporation v. United States Department of Justice – yet another litigation arising from the Lower Fox River Superfund Site in Wisconsin.

In that case, a private PRP pursued a Freedom of Information Act claim seeking documents relating to the terms of an earlier settlement. Relying upon its unitary government theory, the United States asserted a claim of privilege with respect to documents and communications exchanged between DOJ lawyers representing EPA and other DOJ lawyers representing federal PRPs. The court disagreed: “Because the United States has competing interests in this case, it (appropriately) has separate counsel from [two different sections at the Department of Justice] independently representing the interests of their respective client agencies in the same manner as other adverse parties. Communications between those adverse parties therefore waive the privilege as would communications between Plaintiffs Menasha and NMSC and any other PRP.”

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Environmental Law | Attorney Advertising

Written by:

more+
less-

Foley Hoag LLP - Environmental Law on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
×
Loading...
×
×