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Maine v. Department of the Interior

Citation: 32 ELR 20597
No. No. 01-1234, 285 F.3d 126/(1st Cir., 04/05/2002)

The court affirms in part and vacates in part a district court order requiring the U.S. Department of the Interior (DOI) to disclose to Maine certain documents relating to efforts to list Atlantic salmon in eight rivers in Maine as endangered. Although the district court allowed the DOI to withhold many documents, it ordered the agency to disclose 197 documents, finding them not exempt under either the attorney-client or work product privileges, and the DOI appealed. The court first holds, however, that the district court did not err in requiring the DOI to demonstrate that the withheld documents were created primarily for litigation purposes in order to claim the work product privilege under the Freedom of Information Act (FOIA). The court also holds that the district court did not err in finding that the DOI failed sufficiently to disclose that the documents at issue were prepared in anticipation of litigation and to identify the litigation for which the alleged work product documents were prepared. The DOI failed to meet its burden of making the correlation between each withheld document and the litigation for which the document was created. In addition, the district court did not err in finding certain documents unprotected by the attorney-client privilege. The DOI failed to explain how the documents claimed to be protected relate to a confidential client communication. In addition, the court holds that the district court did not act prematurely in granting Maine's motion for summary judgment. The court next vacates a portion of the district court's order that held that FOIA does not exempt from disclosure otherwise privileged factual material in an attorney's work product. Maine withdrew its request for the 19 documents that the district court ordered disclosed based on this holding.

Counsel for Plaintiff
Christopher C. Taub, Ass't Attorney General
Attorney General's Office
477 Congress St., Ste. 702, Portland ME 04101
(207) 773-6489

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

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

* Of the Third Circuit, sitting by designation.