Regents of the University of Minnesota v. United States of America

Background

The University seeks recovery of environmental response costs and declaratory relief under the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, against the United States and E.I. du Pont de Nemours and Company. It also brings claims against DuPont under Minnesota law. The University alleges that it incurred more than $3 million in costs related to hazardous-substance contamination at an approximately 8,000-acre site in Rosemount, Minnesota, that the United States conveyed to the University through two quitclaim deeds.

The United States moved to compel production of communications and draft reports involving the University, its outside legal counsel, and its environmental consultants, Peer Environmental & Engineering Resources, Inc. and Barr Engineering Company. The University withheld thousands of documents under the work-product doctrine, and withheld some documents under attorney-client privilege as well. The United States argued that the documents were created for environmental and business purposes rather than in anticipation of litigation, that it had a substantial need for them, and that the University had waived protection by relying on its environmental investigations and costs in the lawsuit.

Work-Product Protection

The work-product doctrine generally protects documents prepared because of the prospect of litigation. The court applied the Eighth Circuit’s fact-specific test, examining the nature of the documents and the circumstances in which they were created. It held that the University’s privilege log satisfied the federal rule requiring enough information for the opposing party to assess the privilege claim.

The court found that the University reasonably anticipated litigation with the Minnesota Pollution Control Agency and the United States after receiving the agency’s May 31, 2001 request for information. That request alerted the University to contamination at the site and stated that the United States was attempting to transfer environmental liability to the University. The court also considered the University’s retention of outside counsel and consultants, the consultants’ agreements referring to anticipated litigation and confidentiality, and a declaration from the University’s deputy general counsel stating that litigation was anticipated.

The court rejected the United States’ argument that the documents were created only to avoid enforcement litigation or to fulfill environmental obligations. It concluded that the investigative work could serve both environmental and litigation-related purposes and that the documents were prepared in anticipation of litigation. The court therefore held that the documents were protected work product.

Substantial Need and Waiver

Even when ordinary work product is protected, discovery may be ordered if the requesting party shows a substantial need and cannot obtain the information’s substantial equivalent without undue hardship. The court found that the United States did not meet that burden. The University had produced final reports, underlying data and factual information, unredacted invoices, and had made consultant witnesses available for depositions. The court viewed the United States’ claim that the withheld materials might show changes in the consultants’ conclusions as speculative and found that the issues could be explored through other discovery.

The court also rejected the United States’ implied-waiver argument. Unlike a case in which a party withheld all information about the work underlying its claim, the University had produced extensive information, including final reports, underlying data, objective facts, and unredacted invoices. The court found that fairness and consistency did not require waiver, particularly because the United States—not the University—sought to make testimonial use of the documents.

Disposition

The court denied the United States’ motion to compel. Because the motion was denied based on work-product protection, the court did not reach the parties’ arguments about attorney-client privilege.