Appleton Papers, Inc. v. Environmental Protection Agency

In the

United States Court of Appeals
For the Seventh Circuit

No. 12-2273

A PPLETON P APERS, INC.,
Plaintiff-Appellant,
v.

E NVIRONMENTAL P ROTECTION A GENCY, and
U NITED S TATES D EPARTMENT OF
JUSTICE E NVIRONMENT AND
N ATURAL R ESOURCES D IVISION,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 11-C-318—William C. Griesbach, Chief Judge.

A RGUED O CTOBER 25, 2012—D ECIDED D ECEMBER 26, 2012

Before F LAUM, M ANION, and R OVNER, Circuit Judges.
F LAUM, Circuit Judge. After the government alleged
Appleton Papers Inc. (“API”) and seven other companies
caused $1 billion in contamination in the Fox River near
Green Bay, Wisconsin, the government hired a consultant
that prepared reports on the companies’ responsibility
2 No. 12-2273

for the contamination. API unsuccessfully sought discov-
ery of these reports by challenging a consent decree
between the government and another company.
Determined to see the content, it filed a Freedom of
Information Act (“FOIA”) request seeking the material,
but the government refused under the FOIA exemption
covering attorney work product. API eventually filed
suit in federal district court, and we uphold the
district court’s decision in favor of the government.
Even though the government used portions of its reports
in two consent decrees, that use does not waive work
product immunity for all the related content. API also
misconstrues the privilege by erroneously suggesting
that facts underlying the conclusions are unprotected.
As a result, API’s arguments boil down to a series of
policy justifications that must be left for district courts
in individual litigation instead of a FOIA request, which
is not a substitute for discovery.

I. Background
A. Factual Background
This case originates out of contamination in the Lower
Fox River and Green Bay caused by a handful of paper
companies. The United States issued a unilateral admin-
istrative order under the Comprehensive Environmental
Response, Compensation, and Liability Act (“CERCLA”),
see 42 U.S.C. § 9601 et seq., to API and seven other “poten-
tially related parties” (“PRPs”), alleging that the PRPs
discharged polychlorinated biphenyls (“PCBs”) into the
No. 12-2273 3

site from their facilities. Cleanup of the site is expected
to cost approximately $1 billion.
In preparation for CERCLA litigation, the United States
hired Amendola Engineering, Inc. (“Amendola”), as an
environmental consultant to the Fox River matter.
Amendola prepared a report in 2000 entitled
“Preliminary Estimates of PCB Discharges to the Fox
River 1945 to 1985.” The report estimated the amount
of PCB each PRP discharged into the water. The Environ-
ment and Natural Resource Division of the Department
of Justice (“ENRD”) released a partial copy of the report
to API in 2000. It also released a partial copy of a
revised version in 2001.
The government subsequently cited to the reports and
post-2001 versions, which it had not released, in two
consent decrees with other PRPs in the Fox River mat-
ter. First, the United States’ brief in support of a consent
decree with Fort James Operating Company estimated
Fort James was responsible for 15-20% of the PCB contami-
nation even though the 2000 and 2001 reports estimated
Fort James’s responsibility at 38% and 28% respectively.
The district court in that case entered an order
approving the consent decree over objection by
the Clean Water Action Counsel. See United States v. Fort
James Operating Co., 313 F. Supp. 2d 902 (E.D. Wis. 2004).
Next, the government used the 15-20% estimate again
in its brief in support of a consent decree with Geor-
gia-Pacific Consumer Products (Fort James’s succes-
sor-in-interest). Again the district court entered an order
approving the consent decree relying, in part, on the
4 No. 12-2273

various versions of the Amendola report. API and NCR,
another PRP,1 opposed the order and sought additional
discovery of the documents they seek in this case. The
district court rejected API’s and NCR’s assertions “that
the 15-20% figure has come out of left field.” United
States v. NCR Corp., 10-C-910, Dkt. No. 130 (E.D. Wis. Apr.
4, 2011). The district court noted that the government’s
estimate was consistent with reports other than the
2000 and 2001 Amendola Reports, suggested “NCR and
AP[I] do not seem to appreciate the distinction between
a settlement negotiation and liability at trial,” found
the settlement was fair, and concluded the additional
discovery that API and NCR requested was not required.
Id. at 4-5.

B. Procedural Background
Unsuccessful in its attempts to get full copies of the
Amendola Reports, API submitted a FOIA request to
ENRD requesting all copies, drafts, and supporting
information related to the 2000 and 2001 Amendola
Reports as well as subsequent versions. The government
provided two documents—what API calls partial copies
of the 2000 and 2001 Amendola Reports, which the gov-
ernment previously released—but withheld 101 docu-
ments under FOIA exemptions. API filed an administra-

1
API apparently has a cost-sharing agreement with NCR.
This explains API’s interest in the Amendola Reports despite
API’s claim that a district court has already absolved it of
responsibility in the Fox River matter.
No. 12-2273 5

tive appeal, to which the government did not respond.
API then filed an appeal in the Eastern District of Wis-
consin.
The government moved for summary judgment, as-
serting the documents were work product subject to
FOIA exemption 5. The district court agreed and granted
the motion. The court rejected API’s argument that
“purely factual material” could be separated from the
protected material. In rejecting this claim, the district
court relied on Rule 26(b)(4)(D) of the Federal Rules of
Civil Procedure, which prevents discovery of the facts in
a nontestifying expert witness’s report. The district
court next rejected API’s argument that “because some
of the results of the consultant experts” were released
in the consent decrees, work product immunity no
longer applied to “all of the underlying technical data
and other materials underlying those results.” The
district court cited Federal Rule of Evidence 502(a)(2).
Under this rule, subject matter waiver occurs only if the
undisclosed material “ought in fairness be considered
together” with the disclosed material. The district court
applied the rule and found that the government’s sub-
missions in the consent decrees were passive and did
not result in waiver. API timely appeals.

II. Discussion
We do not review entries of summary judgment in
FOIA cases de novo. Instead, we “determine whether
the district court had a sufficient factual basis for its
ruling and, if so, whether the court’s decision was clearly
6 No. 12-2273

erroneous.” Enviro Tech Int’l, Inc. v. U.S. EPA, 371 F.3d
370, 373 (7th Cir. 2004). The government bears the burden
of proof because the statute is construed in favor of
disclosure. Patterson v. IRS, 56 F.3d 832, 836 (7th Cir. 1995).
FOIA requires government agencies to disclose their
records to the public. 5 U.S.C. § 552(a). However, sub-
section (b) exempts nine categories of material “that
represent the congressional determination of the types
of information that the Executive Branch must have the
option to keep confidential, if it so chooses.” FTC v. Grolier
Inc., 462 U.S. 19, 23 (1983) (internal quotation marks
and original brackets omitted); see 5 U.S.C. § 552(b).
Specifically, subsection (b)(5) protects “inter-agency and
or intra-agency memorandums or letters which would
not be available by law to a party . . . in litigation with
the agency.” 5 U.S.C. § 552(b)(5). This exemption covers
work product, which prevents “a party [from] dis-
cover[ing] documents and tangible things that are pre-
pared in anticipation of litigation or for trial by or for
another party or its . . . agent.” Fed. R. Civ. P. 26(b)(3)(A);
see Grolier, 462 U.S. at 20 (“It is well established that
[exemption 5] was intended to encompass the attorney
work[ ]product rule.”); see generally Hickman v. Taylor,
329 U.S. 495 (1947) (establishing work product immunity).
In assessing the validity of a work product claim
under exemption 5, we determine whether “the docu-
ments would be ‘routinely’ or ‘normally’ disclosed upon
a showing of relevance.” Grolier, 462 U.S. at 26. In litiga-
tion, Federal Rule of Civil Procedure 26(b)(1) permits a
party to discover information “relevant” to a claim or
No. 12-2273 7

defense. Fed. R. Civ. P. 26(b)(1) (parties “may obtain
discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense”). But Rule
26(b)(3)(A) protects, as privileged, relevant material that
constitutes work product. Thus, this material is not
“disclosed upon a showing of relevance” and falls
under exemption 5 in FOIA cases. Grolier, 462 U.S. at 26.
Of course, there are ways to overcome the privilege in
an individual case. For instance, a party may overcome
a work product claim by showing “it has substantial
need for the materials to prepare its case and cannot,
without undue hardship, obtain their substantial equiva-
lent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii). Addi-
tionally, although a report prepared in anticipa-
tion of litigation is work product, the party must
disclose that report if its author plans to testify at trial.
Fed. R. Civ. P. 26(a)(2)(B). However, we ignore these
case-specific considerations in FOIA cases. NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 149 n.16 (“The ability
of a private litigant to override a privilege claim set up
by the government, with respect to an otherwise
disclosable document, may itself turn on the extent
of the litigant’s need in the context of the facts of his
particular case; or on the nature of the case. However,
it is not sensible to construe the Act to require disclosure
of any document which would be disclosed in the hypo-
thetical litigation in which the private party’s claim is
the most compelling.” (internal citations omitted)). The
requestor is limited to a showing of “relevance” in a
“normal” case. It cannot make fairness arguments
related to a hypothetical case or hypothetical litigant.
8 No. 12-2273

Nor can it assert that it would be entitled to the docu-
ment in litigation with the government—each member of
the public is equally entitled to make a FOIA request.
U.S. Dep’t of Defense v. Fed. Labor Relations Auth., 510 U.S
487, 499 (1994).
These principles underlie the problems with API’s
arguments. Although API agrees the documents are
work product, it argues that the “purely factual mate-
rial” is separable from Amendola’s “opinions.” As a
result, API argues the district court should have
reviewed the documents in camera and separated them.
It also argues that the government waived the privilege
with respect to all of the requested documents because
it used select portions of those documents in its consent
decrees with other PRPs. We conclude that all of the
documents sought are work product, and although
the government waived protection for the specific infor-
mation submitted in the consent decrees, that waiver
does not constitute waiver of all related material.

A. All of the Requested Material Is Protected Work
Product
API seems to agree the documents it seeks are, at least
in part, work product. The district court’s findings,
which are entitled to deference, confirm this. The United
States retained Amendola and other firms in prepara-
tion for the Fox River and other litigation, and
“[t]hese firms have produced draft reports and other
documents for the government’s use in litigation.” The
documents “consist of the technical reports, drafts, data[,]
No. 12-2273 9

and other communications about those reports.” These
findings, which are consistent with the record and API’s
own assertions, fall under Rule 26(b)(3)(A), making
them work product and protected under exemption 5.
API’s first and third arguments on appeal assert that
any “factual” material is separable from “opinions.” In
other words, it believes that factual material underlying
the report’s conclusions is not protected work product.
This argument ignores Rule 26, which protects all “docu-
ments and tangible things that are prepared in anticipa-
tion of litigation.” Fed. R. Civ. P. 26(b)(3)(A). It does,
however, separate “fact” work product and “opinion”
work product. “Fact” work product is discoverable in the
rare case where party makes the “substantial need”
showing discussed above. Fed. R. Civ. P. 26(b)(3)(A)(ii)
(permitting discovery if “the party shows that it has
substantial need for the materials to prepare its case
and cannot, without undue hardship, obtain their sub-
stantial equivalent by other means”); see generally
Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D.
474, 478 (N.D. Ill. 2002) (This burden is difficult to meet
and is satisfied only in “rare situations, such as those
involving witness unavailability.”). But even when a
litigant makes the substantial need showing, “opinion”
work product remains protected. Fed. R. Civ. P. 26(b)(3)(B)
(“If the court orders discovery of those materials [for
which a party has a substantial need], it must protect
against disclosure of the mental impressions, conclusions,
opinions, or legal theories of a party’s attorney or other
representative concerning the litigation.”). Thus, al-
though there are differing levels of protection for fact
10 No. 12-2273

and opinion work product, the Federal Rules protect
both types.2 See In re Grand Jury Proceedings, Thursday
Special Grand Jury Sept. Term, 1991, 33 F.3d 342, 348 (4th
Cir. 1994). They require a showing beyond relevance
before they are discoverable, and as such, they are
covered by FOIA exemption 5. See Grolier, 462 U.S. at 26.
Indeed, API did not need to look further than Hickman
to understand the error in its argument. There, the
Court protected the facts the lawyer obtained from inter-
viewing witnesses. Hickman, 329 U.S. at 498.
API also argues that the district court clearly
erred in relying on Rule 26(b)(4)(D), which prohibits
parties from discovering the research of a nontestifying
expert. This rule is simply an application of the work
product rule. The consultant’s work will, by definition,
be work product because the party uses the con-
sultant “in anticipation of litigation.” See Fed. R. Civ.
P. 26(b)(4)(D). The district court did not use the rule as
independent authority to reject API’s claim. Rather, the
district court used it as an illustration. Because the rule
protects “facts known or opinions held by an expert,” the
rule shows that facts and opinions alike are protected
and therefore not separable. See id. (emphases added). API
also cites authority for the proposition that once a party

2
It is possible that all of the documents are “fact” work product
comprised of Amendola’s factual studies. This, however,
would not alter our conclusion. We make the distinction
between fact and opinion work product only to illustrate API’s
error.
No. 12-2273 11

relies on the research of a nontestifying expert, it falls
out of the protection of the Rule and becomes freely
discoverable. True, but this is the same litigation-specific
argument that API relies on throughout its brief. Parties
need only disclose work product in the particular case they
use it. This argument echoes the waiver argument we
reject below—that the government used a portion of the
report in a consent decree does not mean that the
Rule requires disclosure in every case going forward.

B. The Government Did Not Waive Work Product
Immunity
Next, API argues that by using some of the documents
in support of the consent decrees with Fort James and
Georgia-Pacific, the government waived protection for
all of the documents API now seeks. API offers little
support for its implicit premise that disclosure of some
information results in disclosure of all of the material
concerning the same subject. That principle applies
more broadly to the attorney-client privilege, where
disclosure of privileged information can destroy the
privilege. Generally, a party that voluntarily discloses
part of a conversation covered by the attorney-client
privilege waives the privilege as to the portion disclosed
and to all other communications relating to the same
subject matter. Williams & Connolly v. SEC, 662 F.3d 1240,
1244 (D.C. Cir. 2011) (citing In re Sealed Case, 877 F.2d 976,
980-81 (D.C. Cir. 1989)). However, the work product
doctrine is “is distinct from and broader than the attor-
ney-client privilege.” United States v. Nobles, 422 U.S. 225,
12 No. 12-2273

238 n.11 (1974). Work product immunity furthers the
client’s interest in obtaining complete legal advice and
creates “a protected area in which the lawyer can
prepare his case free from adversarial scrutiny.” Hickman,
329 U.S. at 511. It advances the adversarial system
by providing incentives to collect information and thor-
oughly prepare for litigation.
In determining whether the government impliedly
waived work product immunity for the documents API
seeks, we determine whether the “specific assertions
of privilege are reasonably consistent with the purposes
for which” the privilege was created. In re Sealed Case,
676 F.2d 793, 817 (D.C. Cir. 1982). Accordingly, “disclo-
sure of some documents does not necessarily destroy
work-product protection for other documents of the same
character.” 8 Wright & Miller, Federal Practice & Proce-
dure, § 2024; Williams & Connolly, 662 F.3d at 1244; Pittman
v. Frazer, 129 F.3d 983, 988 (8th Cir. 1997); Sealed
Case, 676 F.2d at 818; Duplan Corp. v. Deering Milliken,
Inc., 540 F.2d 1215, 1222 (4th Cir. 1976).
With respect to this case, there is no doubt that the
government waived work product immunity for the
portions of the documents it did use in the two consent
decrees. Those citations “substantially increased the
opportunities for potential adversaries to obtain the
information,” thereby eliminating any interest the gov-
ernment had in keeping the information from API.
Wright & Miller, supra, § 2024; see Brown v. Trigg,
791 F.2d 598, 601 (7th Cir. 1986) (immunity waived by
testifying about material at a previous hearing). But the
No. 12-2273 13

government has already provided API with that infor-
mation.3
In doing so, however, the government did not “expose[]
the enchanted nature” of the information API now
seeks. See Sealed Case, 676 F.2d at 817 (internal quotation
mark omitted). In keeping the material privileged, there
is nothing inconsistent with the immunity’s purpose,
which encourages litigants like the United States to
prepare reports like the Amendola Report. This practice
provides courts with additional information and facil-
itates the truth-seeking process. Ruling as API asks us
could have two deleterious effects that are inconsistent
with the immunity’s purpose. First, it may discourage
the government from settling with PRPs for fear that
in entering consent decrees, it would have to release
all related information to parties it wants to take to
trial. See Metro. Housing Development Corp. v. Village
of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir. 1980)
(“The law generally favors and encourages settlements.”).

3
This explains API’s misplaced reliance on Goodrich Corp. v.
U.S. EPA, 593 F. Supp. 2d 184 (D.D.C. 2009). There, the court
relied on policy considerations and found that the EPA’s
disclosure of a model in a public presentation waived the
right to the underlying report. However, the court noted that
the EPA had already disclosed the “gist” of the information
it sought to exempt from the FOIA request. Id. at 191. More
importantly, Goodrich claimed waiver “for a single document,”
in contrast to what API seeks here—an “open-ended list of
all documents related to a certain subject” of which the
United States has not revealed the “gist.” Cf. id. at 192.
14 No. 12-2273

Additionally, finding waiver is inconsistent with Hick-
man’s central tenet—by requiring the government to
disclose all material related to documents it used we
would discourage creating drafts and supporting docu-
mentation in the first place. 329 U.S. at 511 (“Were
such materials open to opposing counsel . . . much of what
is now put down in writing would remain unwritten.”).
Although the government no longer has an interest in
withholding the information made public in the consent
decrees, it still has an interest in benefiting from its prepa-
ration of the other information it can use in future litiga-
tion. This interest is at the core of the work product
rule. Therefore, we do not find waiver of the docu-
ments the government has neither used nor released
to API.
This conclusion is consistent with other cases. First, in
Duplan, the Fourth Circuit upheld the district court’s
conclusion that documents related to previously disclosed
material remained protected. 540 F.2d at 1222. It held
that forcing disclosure of related material would create
“harsh results . . . conceivably causing wholesale produc-
tion of all work product documents from . . . a lawsuit
whenever production of any work product document is
considered a waiver.” Id. The waiver exception would
swallow the rule: “The net effect of such a rule would
result in great reluctance to produce any work product
documents for fear that it might waive the immunity as
to all similar documents.” See id. We want to encourage
creating these documents, but we also want to encourage
voluntary disclosure of certain information. API’s argu-
ment would render these goals mutually exclusive.
No. 12-2273 15

Similarly, in Nobles, the defense sought to impeach
prosecution witnesses with an investigatory report its
agent made about those witnesses. 422 U.S. at 228.
The Court rejected the defendant’s argument that the
whole report was protected. It held that the portions
relied upon by the agent were unprotected, but it
“excise[d] all reference to matters not relevant to the
precise statements at issue.” Id. at 228-29. Nobles histori-
cally stands for the earlier proposition that a party
cannot shield the material on which its witnesses rely.
But it also supports the inverse—partial reliance only
“waive[s] the privilege with respect to matters covered”
by the witness. Id. at 239. Undisclosed work product
remains protected.
API seeks to overcome this rule with a series of unavail-
ing policy arguments. For instance, 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
16 No. 12-2273

governs such situations where a party unfairly dis-
closes 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 dis-
closure is (1) intentional, (2) the disclosed and undis-
closed material concern the same subject matter, and
(3) fairness requires considering the material together.
Fed. R. Evid. 502(a). Determining whether the undis-
closed 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.
API’s real complaint seems to be the district court’s
denial of its discovery request in the Georgia-Pacific
consent decree. Perhaps API should have overcome
the privilege in that matter. But that decision has no
bearing on this case. The district court rejected the
request and approved the consent decree. More impor-
tantly, to the extent API (or another party) fears that
the government will use the newer numbers against it
in future litigation, Rule 26 requires disclosure before
trial. Fed. R. Civ. P. 26(a)(2). FOIA is not a substitute
for discovery.
No. 12-2273 17

III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s decision.

12-26-12