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Maine v. Department of the Interior

Citation: 32 ELR 20804
No. No. 01-1234, 298 F.3d 60/(1st Cir., 07/30/2002) opinion amended & superseded

The court holds that a district court properly ordered the U.S. Department of the Interior (DOI) and the U.S. Department of Commerce to disclose documents that the agencies argued were protected under either the attorney-client or work-product privilege exceptions to the Freedom of Information Act (FOIA) in a suit regarding the Endangered Species Act listing of the Atlantic salmon in seven rivers in Maine. The court first holds that the district court incorrectly held that in order for the documents to be protected by the attorney work-product privilege under FOIA, the DOI must not only identify the litigation for which each document was prepared but also establish that counsel prepared the document primarily for litigation purposes. Instead, the documents are protected if, in light of the nature of the document and the factual situation in the particular case, the document can be fairly said to have been prepared or obtained because of the prospect of litigation. The court next holds, however, that the error here was harmless because the DOI failed to make any correlation between the disputed documents and the litigation for which the documents were created. The court further holds that the district court properly found the documents unprotected by the attorney-client privilege. The DOI failed to demonstrate a confidential factual communication and also failed to explain how the withheld legal analysis would reveal any such fact if it existed.

Counsel for Plaintiff
Christopher C. Taub, Ass't Attorney General
Attorney General's Office
Six State House Station, Augusta ME 04333
(207) 626-8800

Counsel for Defendant
Leonard Schaitman, Ass't U.S. Attorney
U.S. Attorney's Office
100 Middle Street Plaza, 6th Fl., Portland ME 04101
(207) 780-3257

Rosenn, * J. Before Selya and Cyr, JJ.

* Of the Third Circuit, sitting by designation.