Menasha Litigation: Wake-Up Call or Just A False Alarm
Open AccessMenasha Litigation: Wake-Up Call or Just A False AlarmIn late 2010, the United States and the State of Wisconsin brought suit against several municipalizes and companies pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) concerning pollution of the Lower Fox River and Green Bay Superfund Site in Wisconsin. The United States' pursued settlement with some of the parties was challenged by two parties, Menasha Corporation and the Neenah-Menasha Sewerage Commission (hereinafter Menasha), when it was presented to the district court for approval. Soon after, Menasha submitted a Freedom of Information Act (FOIA) request to the Department of Justice (DOJ), requesting documents related to the DOJ's development of the proposed settlement. When the DOJ would not disclose all of the requested documents, Menasha filed suit, requesting that the district court compel disclosure of the remaining documents exchanged between attorneys of two sub-sections within the DOJ's Environment and Natural Resources Division (ENRD). Menasha argued that DOJ attorneys represented adverse clients, therefore, waiving any privileges that protected the requested material from disclosure. The DOJ, on the other hand, relied on the unitary executive theory to defend its assertion of continued privilege. In January 2012, a federal district court in Wisconsin broke government litigation precedent when it ruled that DOJ attorneys within two different sub-sections of ENRD waived privilege when they discussed the case. What ensued was an appeal by the DOJ to the Seventh Circuit Court of Appeals and a battle over historical legal privileges and the applicability of the unitary executive theory. This paper outlines the facts of the Menasha litigation, including Menasha and the DOJ's positions. This paper also discusses the historical context and applicability of the key legal concepts raised, including the attorney-client privilege, attorney work product privilege, the deliberative process privilege, and FOIA. Broadening the discussion, this paper addresses the make-up of ENRD and how the DOJ defended itself with the unitary executive theory at trial. Finally, this paper analyzes how the district and appellate courts resolved the issues raised by the parties and how this case progeny will affect the future in CERCLA litigation and beyond.
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