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Civil Procedure – FOIA – discovery — attorney work product

By: WISCONSIN LAW JOURNAL STAFF//December 26, 2012//

Civil Procedure – FOIA – discovery — attorney work product

By: WISCONSIN LAW JOURNAL STAFF//December 26, 2012//

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United States Court of Appeals For the Seventh Circuit

Civil

Civil Procedure – FOIA – discovery — attorney work product

A party cannot use a FOIA request to evade a denial of a discovery request.

“API argues that the ‘district court’s holding allows the government an unfair advantage.’ API argues the district court erred by ‘allowing the [g]overnment to use the portions of the consultant’s opinions that it believes are helpful, while hiding the analysis and the complete opinions from the public view.’ But these sorts of fairness concerns are not relevant to a FOIA inquiry. We determine whether the material would normally or routinely be discoverable in litigation on a showing of relevance, Grolier, 462 U.S. at 26—not whether interests in a particular suit or to a particular litigant can override a privilege in a particular case, Sears, 421 U.S. at 149 n.16.”

“API cannot make this argument in a FOIA case; it must make it in actual litigation. Federal Rule of Evidence 502 governs such situations where a party unfairly discloses only a portion of privileged material. This Rule ‘abolishe[d] the dreaded subject-matter waiver, i.e., that any disclosure of privileged matter worked a forfeiture of any other privileged information that pertained to the same subject matter.’ Trustees of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 11 (D.D.C. 2010). Instead, waiver occurs only when disclosure is (1) intentional, (2) the disclosed and undisclosed material concern the same subject matter, and (3) fairness requires considering the material together. Fed. R. Evid. 502(a). Determining whether the undisclosed material ought to be considered with the disclosed material requires a case-specific analysis of the subject matter and adversaries. See Fed. R. Evid. 502 Advisory Committee Notes. These considerations go beyond the purview of FOIA requests. See Grolier, 462 U.S. at 26.”

Affirmed.

12-2273 Appleton Papers, Inc., v. EPA

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

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