The government did not waive work product immunity for information used in consent decrees to help resolve $1 billion in environmental contamination, according to a U.S. Court of Appeals for the Seventh Circuit ruling.

The unanimous panel ruling December 26 in the U.S. Court of Appeals for the Seventh Circuit in Appleton Papers Inc. v. Environmental Protection Agency (EPA) affirmed Eastern District of Wisconsin Chief Judge William Griesbach’s summary judgment in March for the EPA and the Justice Department’s Natural Resources Division.

Seventh Circuit Judge Joel Flaum wrote the opinion, joined by judges Daniel Manion and Ilana Diamond Rovner.

The case stems from the government’s allegation that Appleton and seven other companies caused $1 billion in contamination in the Fox River near Green Bay, Wisc. To make its case, the government hired a consultant to prepare reports on the companies’ responsibility.

Appleton first tried to access to these reports by challenging a consent decree between the government and one of the other companies in another court case. The court also denied Appleton’s and another party’s request for additional discovery of the documents.

Appleton filed a Freedom of Information Act (FOIA) request in February 2010. The government withheld 101 documents under the FOIA exemptions for attorney work product.

In March 2011, Appleton appealed. The company asked the court to declare that the EPA and the DOJ violated FOIA by withholding the documents.

Griesbach rejected Appleton’s assertion that “purely factual material” could be separated from the protected material.

Regarding the DOJ documents, Griesbach wrote that “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.”

As for the EPA documents, he wrote that Appleton “has not identified any documents it believes should be provided in redacted form or segregated from other material.”

Flaum wrote that “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.”

He also wrote that Appleton’s “arguments boil down to a series of policy justifications that must be left for district courts in individual litigation” and not a FOIA request.

“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 [potentially responsible parties] for fear that in entering consent decrees, it would have to release all related information to parties it wants to take to trial,” Flaum wrote.

Neither Appleton nor its lawyer, Megan Senatori of DeWitt Ross & Stevens in Madison, Wisc., responded to requests for comment.

Justice Department spokesman Charles Miller declined to comment.

Sheri Qualters can be contacted at