It Is A Unitary Government Afterall: Privilege For Intra-Governmental Communications

About a year ago, I blogged about a decision by the federal district court in the Lower Fox River case ruling that there was no attorney-client privilege protecting communications between government lawyers representing the EPA and those representing federal PRPs. At the heart of that decision was the finding that the two sets of government lawyers were actually representing different and adversarial parties. The Seventh Ciruict in Menasha Corporation v. US Dept of Justice has just reversed. According to Judge Posner, the United States is analogous to a large corporation facing a products liability case (involving cosmetic surgery gone wrong); while different parts of the corporation, like the marketing and research departments, may have different views on how the case should be handled, the corporation can only have one final position. Hence, all the internal deliberations are by a unitary entity and thus protected by attorney client and work product privilege.