Appleton Papers Inc v. United States Environmental Protection Agency et al

Filing 24

DECISION AND ORDER GRANTING 13 Motion for Summary Judgment, signed by Judge William C Griesbach on 03/29/2012. The documents withheld by the DOJ properlyconstitute work product and the privilege has not been waived. The Court further concludes that the remaining documents are protected by the deliberative process privilege. The Defendants motion for summary judgment is GRANTED and the case is dismissed. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
APPLETON PAPERS INC.,
Plaintiff,
v.

Case No. 11-C-318

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, and UNITED
STATES DEPARTMENT OF JUSTICE
ENVIRONMENT AND NATURAL
RESOURCES DIVISION,
Defendants.

DECISION AND ORDER

Plaintiff Appleton Papers Inc. (API) made three requests to the Defendant agencies (herein
“EPA” and “DOJ”) under the Freedom of Information Act, 5 U.S.C. § 552. These agencies have
withheld thousands of pages of documents, primarily pursuant to Exemptions 5 and 7(A).
Following exhaustion of the administrative appeal process, API filed suit to obtain the records. The
Defendants have now moved for summary judgment. For the reasons given below, their motion will
be granted.

I. Background
The context of the dispute is the massive environmental cleanup action taking place in the
Lower Fox River, which runs between Lake Winnebago and Green Bay. As detailed elsewhere, the
cleanup of PCBs, being undertaken pursuant to CERCLA, is estimated to take several years and cost
something on the order of one billion dollars. API has been named as a potentially responsible party

(PRP) and has spent significant sums, along with other PRPs, cleaning up the river. API, along with
the NCR Corporation, has been named as a defendant in an enforcement action brought by the
United States. The United States has itself been named as a counterclaim defendant in that case,
and it is also a defendant in a related civil action seeking contribution.
A. FOIA Request to DOJ
In preparation for that and other litigation, the United States retained the services of
environmental engineering contractors named Amendola Engineering, Boldt Engineering and
TechLaw. These firms have produced draft reports and other documents for the government’s use
in litigation. API’s particular interest for FOIA purposes appeared to be in the reports’ estimates
about the relative amounts of pollution released by various PRPs, particularly Georgia-Pacific.
In February 2010 API submitted a FOIA request seeking a full version as well as any drafts
and supporting documentation of a May 10, 2000 report entitled “Preliminary Estimates of PCB
Discharges to the Fox River,” prepared by Amendola. In addition, API sought similar information
about a report prepared by a technical consultant for the government containing updated estimates
of PCB releases to the river. It also sought any other reports and supporting documentation
regarding estimates of PCB discharges.
The government turned over some materials but withheld others. It placed the relevant
documents into two different categories: one for working papers, drafts, emails, and the like; the
other for draft reports, final reports and emails between DOJ attorneys and staff at the TechLaw
firm. These documents make up 101 separate entries on a Vaughn index the government has
provided. See Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). In withholding the documents,
the government argued that all of the withheld documents are protected by the work product
privilege, encoded in Exemption 5. It also cited other reasons for the withholding of some of the

documents, such as the attorney-client privilege and the deliberative process privilege. Finally, it
invoked Exemption 7(A) to withhold some 63 documents on the belief that release of the documents
could “reasonably be expected to interfere with enforcement proceedings.”

5 U.S.C.

§ 552(b)(7)(A).
B. FOIA Requests to EPA
In addition to its request to the DOJ, API also made FOIA requests to the Environmental
Protection Agency relating to the remedial design proposals at the Fox River Site. Since 1998, the
Wisconsin Department of Natural Resources has been working with the EPA to study the Site and
develop approaches for mitigating the PCB damage. These approaches, broadly speaking, include
dredging the contaminated material in some places and placing caps on it in others. (Karl Decl.,
¶¶ 15-16.) In 2010 the EPA and Wisconsin DNR issued two documents that are the subject of
API’s FOIA requests. One is an Explanation of Significant Differences (ESD), which explained
some differences in cleanup remedies versus the remedies originally proposed. (This ESD was
addressed in this Court’s July 5, 2011 Decision and Order at 13, Case No. 10-C-910.) The other
document is called a Criteria Analysis Memorandum (CAM), which supported the ESD. (DPFOF
¶ 75.) In June 2010 API requested records relating to these two documents. In addition, in August
2010 API requested information pertaining to a July 15, 2010 letter from the EPA and WDNR
indicating that the proposal of NCR and Georgia-Pacific to cap, rather than dredge, certain parts of
the river would be disapproved.
In response to the ESD/CAM document requests, EPA ultimately withheld some 112
documents, primarily under the deliberative process privilege. It also invoked Exemption 7(A) (law
enforcement exemption), Exemption 5 (attorney-client and work product privilege), and Exemption

6 (personal privacy). And, in response to the August 2010 FOIA request, EPA withheld or redacted
35 documents on similar privilege grounds.

II. Analysis
The Defendants focus on the work product doctrine, which in their view insulates all of the
DOJ documents from disclosure and many of the EPA documents as well. They also cite the
deliberative process privilege and, to a lesser extent, some of the other exemptions described above.1
A. Work Product Doctrine
Exemption 5 protects “inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). The work product doctrine, codified in Fed. R. Civ. P. 26(b)(3), was designed to
protect the thoughts, strategies and opinions (the “work product”) of an attorney that the attorney
rendered in, or in anticipation of, litigation. The work-product doctrine shields materials “prepared
in anticipation of litigation or for trial by or for another party or by or for that other party's
representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or
agent).” Fed. R. Civ. P. 26(b)(3). “FOIA Exemption 5 incorporates the work-product doctrine and
protects against the disclosure of attorney work product.” Judicial Watch, Inc. v. Dep't of Justice,
432 F.3d 366, 369 (D.C. Cir. 2005). The doctrine has been extended to things and other materials
that have been prepared in anticipation of litigation for a party or its attorney. In addition to
shielding an attorney’s actual thoughts and impressions, one purpose of the doctrine is to create a
1

API notes that it is not presently challenging the adequacy of the government’s search for
documents but expresses the desire to bring such a challenge at a later date, if necessary. But the
government moved for summary judgment on that issue and briefed the issue thoroughly.
Accordingly, this would have been the time to challenge it. Any challenge to the adequacy of the
search is waived, and the Defendants are entitled to summary judgment on that issue.

“zone of privacy” to shield a party’s lawyers and those working on their behalf from scrutiny by the
opposing side. Hobley v. Burge, 433 F.3d 946, 949 (7th Cir. 2006.) Absent such privacy, an
opponent could get “a free ride on the research and thinking of his opponent's lawyer.” Id. (quoting
United States v. Frederick, 182 F.3d 496, 500 (7th Cir. 1999)).
1. The Relevant Documents are Work Product
The government has cited the work product doctrine in withholding all of the DOJ
documents and most of the EPA documents. As discussed further below, I limit my work product
analysis to the DOJ documents, which consist of the technical reports, drafts, data and other
communications about those reports. API does not dispute that the materials in question were
prepared in anticipation of litigation. Instead, Plaintiff argues that the documents are not work
product because “purely factual material” may be severable from the rest of the reports or
communications. These kinds of technical information would not reveal litigation strategies
because the opinions of and data used by the report authors and consultants would not contain
attorney opinions or impressions.
API does not address Fed. R. Civ. P. 26(b)(4)(D), however, which provides that a party may
not discover “facts known or opinions held by an expert who has been retained or specially
employed by another party in anticipation of litigation . . . and who is not expected to be called as
a witness at trial.” Obviously, if one party is openly citing an expert’s opinion in litigation, that
expert and much of his underlying thought processes will be subject to heightened scrutiny. But
when the retained expert is not expected to testify, as here, the rule allows a greater zone of privacy
for those kinds of reports, the theory being that a party should be allowed to conduct its own private
investigations without fear that the results would have to be turned over to the other side. “[C]ourts
addressing a party's attempted use of the opposing party's expert witness have distinguished

testifying experts from those who are retained only as consultants. Under Rule 26(b)(4)(D),
consulting experts are not subject to discovery unless exceptional circumstances exist.” Guinn v.
CRST Van Expedited, Inc., 2011 WL 2414393, *2 (W.D. Okla. 2011). Thus, even “pure” facts
(which presumably do not contain an attorney’s thoughts) are shielded on the grounds that a litigant
should be entitled to conduct its own investigation without needing to turn the results over to the
other side.
The Committee Notes make the distinction clear: “[a]ttorneys may employ two sets of
experts—one for purposes of consultation and another to testify at trial—because disclosure of their
collaborative interactions with expert consultants would reveal their most sensitive and confidential
case analyses.” Fed. R. Civ. P. 26 advisory committee's note (2010). Here, because it is conceded
that the expert reports and communications were obtained and made in anticipation of litigation,
Rule 26(b)(4)(D), incorporated into Exemption 5, would shield them in civil litigation. Moreover,
the policy underlying the work product doctrine applies with full force. The government’s attorneys
retained the services of consultants to aid the government in its expected litigation with the Plaintiff.
Allowing Plaintiff unrestricted access to the data and reports the government obtained would allow
it to freeload on the government’s efforts. Naturally the policies of FOIA support open government,
but when the government is a litigant on behalf of the citizenry, it does the taxpayer no good to force
the government-litigant to disgorge the materials it uses to gain advantage in litigation on behalf of
the taxpayer. Accordingly, I conclude that all of the withheld DOJ materials constitute work
product.
2. Agency Adoption
API argues that Exemption 5 does not protect documents under the work product doctrine
if the documents are adopted as or incorporated into an agency policy. “The Department's view that

it may adopt a legal position while shielding from public view the analysis that yielded that position
is offensive to FOIA.” National Council of La Raza v. Department of Justice, 411 F.3d 350, 360
(2d Cir. 2005) (citation omitted). In that case, the Department of Justice changed its policy to allow
state and local governments the authority to enforce civil violations of federal immigration law. In
supporting and explaining the new policy, the Department repeatedly referred in public to an
unpublished 2002 memorandum prepared by the Office of Legal Counsel. The court found that it
was “clear that the Attorney General and his high-level staff made a practice of using the OLC
Memorandum to justify and explain the Department's policy and to assure the public and the very
state and local government officials who would be asked to implement the new policy that the
policy was legally sound.” Id.
In La Raza there was an explicit agency policy—that local law enforcement could enforce
federal immigration law —and the agency explicitly used an unpublished memorandum in adopting
that policy. Here, there is no comparable “policy” of either the DOJ or the EPA in play. Both
agencies believe certain parties are liable for costs incurred in cleaning up the Fox River Site, but
that is simply a litigation position rather than a policy of the agency. To argue as API does that the
government relied on and even cited portions of the consultants’ work in formulating its litigation
strategy is merely to say that the consultants’ work is work product itself. If that constitutes
“adopting” an agency policy, then the adoption exception would swallow Exemption 5 itself
because government litigants could never cite the work of the consultants it hires without subjecting
that work to full disclosure.2
2

In fact, it is not at all clear that the “agency adoption” argument would apply in the
litigation/work product context. (La Raza was a deliberative process case.) As noted here, applying
an exception to Exemption 5 based on “adopting” the work of paid consultants would make little
sense, because the entire point of hiring such a consultant is that the litigant will “adopt” or at least
rely on his work.

3. Disclosure of Results
API also argues that because some of the results of the consultant experts have been
released, the DOJ must produce all of the underlying technical data and other materials underlying
those results. For this principle API relies on Goodrich Corp. v. U.S. Environmental Protection
Agency, 593 F. Supp.2d 184 (D. D.C. 2009). That case involved an EPA model that “simulat[es]
the downward movement of perchlorate through the vadose zone at the Site (i.e., the zone,
approximately 420 feet deep, between the ground surface and the underlying groundwater).” Id. at
187. The EPA had presented a slide show including both the model’s results and the data to the
Regional Board, which shared the information with the Plaintiff’s law firm. The district court
concluded that sharing the model constituted a waiver. By sharing the data and not zealously
guarding its privacy, the EPA had opened the door to disclosure. Moreover, the request for
production was limited to the model itself rather than an open-ended request for a large volume of
documents.
Although Goodrich ostensibly helps API’s claim, it is weakened by the fact that the court
did not discuss Fed. R. Evid. 502(a)(2), which was enacted in 2008. That rule “abolishes 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. Instead, if there has been
a disclosure of privileged information, the disclosure of additional privileged information will be
required if both documents ‘concern the same subject matter; and (3) they ought in fairness to be
considered together.’” 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) (quoting Fed. R. Evid. 502(a)(2)). In other words,
although the disclosure of some privileged material could result in a waiver of the privilege as to
other, related, material, that will only occur if the non-disclosed documents are required to ensure

that the presentation of information has been fair and not misleading. According to the committee
notes, “subject matter waiver is limited to situations in which a party intentionally puts protected
information into the litigation in a selective, misleading and unfair manner,” a circumstance the
notes suggest would be an “unusual” situation.
Applying that rule here, I cannot find a waiver. The government has indeed cited its
consultants’ work in litigation before this court, but only in passing and certainly not in order to
make a dispositive point. It states that to the extent it has shared some of the report with the other
side, that was done in an effort to facilitate settlement discussions. Given the limited disclosures
made here (which involved wiggle words like “estimates” and “suggestions”), it cannot be argued
that the government’s disclosures were done selectively or that it had cherry-picked certain data in
order to create a misleading impression. Accordingly, I do not find that the government has waived
any privilege with respect to its consultants’ work.3
B. Deliberative Process Privilege
I have concluded above that the work product doctrine applies to many of the documents at
issue here, particularly the DOJ documents relating to the consultants’ work. Other documents,
such as those withheld by EPA, appear less likely to be shielded by the work product doctrine, as
they were prepared in the course of the EPA’s ongoing role in managing the Site rather than in
anticipation of litigation. Litigation, of course, was already underway, but the EPA documents do
not appear to be linked to any particular litigation strategy. Instead, they are directed at explaining
why the proposed remedies remain viable despite significant cost increases or why capping (instead
of dredging) would not be allowed. These actions appear to be within EPA’s normal course of
3

Of course, if the government wishes to cite its consultants’ reports in the future, it may open
itself up to a similar waiver argument if the portions of the reports it cites would result in an unfair
presentation of information.

business rather than in anticipation of litigation. Accordingly, in ruling on the EPA documents I
will begin with the government’s assertion of the deliberative process privilege.4
To recall, the documents the EPA withheld fall into two categories. The first are documents
responsive to API’s June 2010 request for documents relating to the ESD and CAM; these consist
of internal drafts, comments and proposed modifications to the Explanation of Significant
Differences and Criteria Analysis Memorandum. The EPA argues that the withheld documents
would reveal the EPA’s own internal discussions about the various options it was considering and
the strengths and weaknesses of its chosen course. The second set of documents pertains to API’s
August 2010 request for information about the July 15, 2010 letter concerning the remedial design
for OU3. The letter notified the parties that EPA intended to disapprove plans for capping certain
areas of the riverbed.
API does not contest the applicability of the deliberative process privilege to these
documents.5 Its only challenge to the EPA documents is limited to a somewhat cursory argument
that some of the documents can be redacted sufficiently to protect the government’s privileged
information. As an example, API cites a spreadsheet that was attached to an email. The spreadsheet
contains purely factual data that would not reveal any deliberative processes. The government
notes, however, that the spreadsheet in question was prepared by a consultant for API. As such, the
document should already be in the control of API.

4

Given the likelihood of litigation in this context, it could be argued that almost any
documents the EPA prepared were done in anticipation of litigation. But accepting such an
argument would create a massive work product exception shielding the disclosure of countless EPA
documents, and it is doubtful that Exemption 5 was intended to be so large.
5

Its brief argues that the DOJ documents are not shielded by the deliberative process
privilege, but it is silent on the EPA documents.

Apart from that single example, API has not explained how the government’s segregability
analysis has been deficient. It is true that the government “has the burden of demonstrating that no
reasonably segregable information exists within the documents withheld.” Army Times Pub. Co.
v. Department of Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993). But it is also true that summary
judgment is the moment in a lawsuit in which the parties have to speak, or forever hold their peace.
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 260 (1st Cir. 1999); see also, Johnson
v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003) (“[S]ummary judgment is the ‘put up
or shut up’ moment in a lawsuit . . .”) In other words, a FOIA plaintiff cannot make a generic,
untargeted objection to the government’s reasoned explanation for withholding documents and
expect to win. Otherwise, a FOIA plaintiff could simply rest on a blanket assertion of disclosure
inadequacy and require the government to explain in court each of possibly hundreds or thousands
of documents being withheld. Summary judgment requires more of non-moving parties. With the
exception of the spreadsheet described above, API has not identified any documents it believes
should be provided in redacted form or segregated from other material. In the face of reasonable
explanations for the non-disclosure, along with more than 100 pages of Vaughn indices and
supplemental disclosures, a FOIA plaintiff needs to do more to defeat summary judgment.
For the same reasons, an in camera review of the withheld documents would not be
appropriate either. It is not the proper role of a court to sift through documents to determine
whether the government has met its burden as to each and every one of them. Ours is an adversarial
system that relies on the parties to make their arguments on discrete issues, which judges then
decide. We do not ask a judge to consider every possible issue in a case without any guidance from
the objecting party: “in camera inspection should be limited as it is ‘contrary to the traditional
judicial role of deciding issues in an adversarial context upon evidence openly produced in court.’

” Missouri Coalition for Environment Foundation v. U.S. Army Corps of Engineers, 542 F.3d 1204,
1210 (8th Cir. 2008) (citation omitted). Accordingly, I conclude the government is entitled to
summary judgment on the EPA documents as well.

III. Conclusion
For the reasons given above, I conclude that the documents withheld by the DOJ properly
constitute work product and that the privilege has not been waived. I further conclude that the
remaining documents are protected by the deliberative process privilege. The Defendants’ motion
for summary judgment is GRANTED and the case is dismissed.
SO ORDERED this

29th

day of March, 2012.

s/ William C. Griesbach
William C. Griesbach
United States District Judge