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United States v. Apex Oil Company

December 21, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
APEX OIL COMPANY, INC. DEFENDANT.



The opinion of the court was delivered by: Herndon, Chief Judge

MEMORANDUM AND ORDER

I. Introduction

This matter comes before the Court on two pending matters: the United States' motion for protective order (Doc. 31) and Defendant Apex Oil Company, Inc.'s ("Apex") motion in limine to Preclude Admission of the July 1987 Clark Oil Refineries Technical Assessment Prepared by Arthur D. Little, Inc. (Doc. 93). For the following reasons, the Court grants the United States' motion for protective order (Doc. 31) and denies Apex Oil's motion in limine (Doc. 93).

II. Analysis

A. United States' Motion for Protective Order (Doc. 31)

1. Background

On January 9, 2006 the United States filed a motion seeking a protective order relating to the Enforcement Addendum attached to a March 14, 2004 U.S. EPA memorandum entitled "Determination of Threat to Public Health or Welfare or the Environment at the Hartford Area Hydrocarbon Plume Site in Hartford, Illinois in the County of Madison" ("Enforcement Memorandum"). (Doc. 31.) The Enforcement Addendum was marked "ENFORCEMENT CONFIDENTIAL NOT SUBJECT TO DISCOVERY." EPA attorney Brian Barwick authored the Enforcement Addendum. Mr. Barwick submitted a declaration in support of the motion for protective order (Doc. 31, Ex. 1.) The declaration details the process of creating the Enforcement Addendum and the efforts Mr. Barwick made to ensure that the Enforcement Addendum was placed in the site privilege file, not the administrative record. However, according to the United States, despite Mr. Barwick's efforts, an administrative error occurred and the Enforcement Addendum was placed in the administrative record and later inadvertently provided to Apex in response to a discovery request. As soon as the United States became aware of the disclosure of the Enforcement Addendum, it sent a letter to counsel for Apex requesting that the document be returned or destroyed. Apex declined to do so.

On December 23, 2005, Magistrate Judge Donald Wilkerson held a telephonic discovery dispute conference regarding this matter. The issue was particularly pressing because of its impact on a pending motion for partial summary judgment. Following the conference, the parties briefed the matter. (See Docs. 28 and 31.) However, the motion for partial summary judgment was ruled on before the motion for protective order was ever ruled on, rendering the issue moot, or so the Court believed. The issue was raised again by the United States on May 24, 2007 at the final pre-trial conference. The United States requested that the motion be ruled upon, unless Apex was willing to voluntarily return the document. In August 2007, Apex informed the Court that it still believed that the document was not privileged and, therefore, requested that the Court rule upon the motion. The Court directed the parties to file supplemental briefs. (Doc. 100.) On August 29, 2007, the United States and Apex filed supplemental briefs. (Docs. 102 and 103.)

2. United States' Arguments

The United States asserts in its motion for protective order (Doc. 31) that the Enforcement Addendum is protected from disclosure by the attorney-client privilege and the work product protection and that its inadvertent disclosure of the Enforcement Addendum does not waive those protections. Citing United States v. Lawless, 709 F.2d 485, 487 (7th Cir. 1983). The United States argues that the Court should apply a balancing test to determine whether the inadvertent disclosure of a protected document effects a waiver of the protections.Applying this test, the United States maintains that the Enforcement Addendum is privileged and that it did not waive that privilege when it inadvertently disclosed the document to Apex. In addition, the United States asserts that it has always acted in a way to protect the document's privilege.

3. Apex's Arguments

Apex denies that the Enforcement Addendum is entitled to any protections because 1) it alleges that the document was shared with third-parties, 2) with whom the joint-defense privilege does not apply, and 3) the Enforcement Addendum is administrative and not legal. In its supplemental brief (Doc. 102), Apex maintains its previous arguments and asserts new arguments, which it says have emerged since the initial briefing. First, Apex argues that the United States has proceeded in such a way with respect to the Enforcement Addendum that its subsequent actions work to waive any privilege that might have existed. In addition, although Apex does not exactly endorse the balancing test, it acknowledges that the balancing test may be the standard governing whether an inadvertent disclosure waives a document's privilege. Apex argues that the balancing test factors also support a finding that the United States has waived the privilege.

4. Discussion

The Court undertakes a three-part inquiry to review Plaintiff's motion ...


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