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Evidence — attorney work product privilege

United States Court of Appeals For the Seventh Circuit

Civil

Evidence — attorney work product privilege

The attorney work product privilege protects from pretrial discovery work product exchanged between Justice Department lawyers who are assigned to provide legal assistance to federal agencies that have conflicting interests.

“The Associate Attorney General, who approved the proposed consent decree, is not a judge adjudicating a suit between the EPA on the one hand and the Corps of Engineers and a host of other federal agencies (including, confusingly enough, the EPA) on the other hand. The Superfund suit was brought not by or against (or by and against) a medley of separate federal agencies conceived of as parties. The only federal party was the United States, a single party represented by a single legal representative, the Justice Department. See 28 U.S.C. §§ 516, 519; United States v. Providence Journal Co., 485 U.S. 693, 706 (1988); The Attorney General’s Role as Chief Litigator for the United States, 6 Ops. Off. Legal Counsel (O.L.C.) 47, 1982 WL 170670 (Jan. 4, 1982). There are disputes, mainly though not only involving independent federal agencies, in which a federal agency is authorized to sue in its own name and different parts of the government may find themselves squaring off against each other as opposing parties in litigation. See, e.g., United States v. ICC, 337 U.S. 426, 430- 31 (1949); SEC v. Federal Labor Relations Authority, 568 F.3d 990, 997-98 (D.C. Cir. 2009) (concurring opinion); Michael Herz, ‘United States v. United States: When Can the Federal Government Sue Itself?’ 32 William & Mary L. Rev. 893, 907-10 (1991); United States v. Nixon, 418 U.S. 683, 697 (1974). But as this is not such a case, information in the nature of attorney work product exchanged among the Department’s lawyers is not information exchanged among adverse parties and is therefore privileged.”

Reversed.

12-1720 Menasha Corp. v. DOJ

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Posner, J.

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