In Menasha Corp. v United States Department of Justice (7th Cir. 2013), the court held that the work product privilege protects Department of Justice memoanda from discovery, even if Depatment of Justice lawyers appear to be adverse to each other. The suit arose out of a Superfund site in Wisconsin at which the United States filed an action against a number of entities that were alleged to have contributed to the contamination. In a consent decree with several defendants, the United States agreed to contribute $4.5 million dollars toward the remediation because of waste sent to the site by federal agencies. The consent decree was submmited to the court for approval and Menasha opposed the consent decree.
Menasha claimed that the consent decree was not fair because the United States was not paying its fair share. Menasha also counterclaimed against the United States. To support its claim, Menasha sought discovery (through a freedom of information request) of Justice Department memoranda regarding the negotiations within the Justice Department that led to the payment by the United States.
The court held that the work product privilege protected the memoranda. The court viewed the Justice Department as one law firm and explained that it was important for Justice Department attorneys to be able to be open with each other. The court said this was analogous to a debate within a corporate law department in which attorneys express opposing views. The expression of opposing views does not make the attorneys adverse to each other for discovery purposes.
The Court’s analogy to debate within a corporate law department seems way off point. A corporation cannot sue itself. The United States, on the other hand, is often on both sides of environmental litigation, both as envorcing agency and as a responsible party. In such cases, the govenment as law enforecment agency and the government as responsible party are adverse to each other and should not work together to the detriment of the other responsible parties. The court noted that the settling agencies were not parties to the litigation. If they were that should have created real adversity between the government lawyers and the outcome should in that case be differernt.