It Is a Unitary Government Afterall: Privilege For Intra-Governmental Communications

About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the EPA and those representing federal PRPs.  At the heart of that decision was the finding that the two sets of government lawyers were actually representing different and adversarial parties.  The Seventh Ciruict in Menasha Corporation v. US Dept of Justice has just reversed.  According to Judge Posner, the United States is analogous to a large corporation facing a products liability case (involving cosmetic surgery gone wrong); while different parts of the corporation, like the marketing and research departments, may have different views on how the case should be handled, the corporation can only have one final position.  Hence, all the internal deliberations are by a unitary entity and thus protected by attorney client and work product privilege.

The analogy between the federal government and a large private corporation could not be more inapt and underscores the weakness in Judge Posner’s rationale.  EPA’s differing interest with federal PRPs is not remotely comparable to the differing interests between a marketing and research department in a corporation.   In CERCLA, Congress granted EPA enforcement authority over federal PRPs.   EPA can issue enforceable unilateral orders to federal PRPs.  That is wildly different from the collegial disagreements that can arise between departments in the same corporation.   In the end, the better position would seem to be that advanced by the district court, which held there was no work product or attorney client privilege in communications between government lawyers.   That does not, however, mean that those communications are not entitled to whatever protection from disclosure that settlement communications between the government and PRPs generally enjoy.

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