United States District Court, E.D. Wisconsin
WILLIAM C. GRIESBACH, CHIEF JUDGE
NCR’s Motion to Compel
NCR has moved to compel the United States to produce a full,
unredacted copy of the 2002 Amendola report, which NCR
believes the United States has relied on in supporting its
consent decrees. It asks that the court conduct an in
camera review of the report to determine whether that
was the case and, if so, for an order requiring production.
For the reasons given below, the motion will be denied.
argues that the government has selectively quoted and more
extensively relied upon the 2002 report, which contains
different estimates from previous versions of the report. For
example, when it negotiated a consent decree with
Georgia-Pacific, the United States estimated that GP was
responsible for roughly 16% of the PCBs discharged to the
river. Similarly, it used Amendola information to estimate a
.03% share to Kimberly-Clark. Previously, the government
criticized NCR’s expert for relying on earlier versions
of the report, and yet now it will not produce what appears
to be the final report. NCR thus argues that for this and
other reasons, the government has waived any privilege it
might have had with respect to the documents in question. In
addition, the government accidentally disclosed several
unredacted documents, including the information NCR now
seeks. NCR agreed to destroy its versions of the documents,
and the government eventually produced redacted versions,
justifying the redactions by citing work-product privilege.
NCR also argues that this disclosure serves as a waiver of
United States responds that NCR (and Appvion) have already
tried to get the documents in question, but have been
rejected by this court and the Seventh Circuit. “Even
though the government used portions of its reports in two
consent decrees, that use does not waive work product
immunity for all the related content.” Appleton
Papers, Inc. v. E.P.A., 702 F.3d 1018, 1020 (7th Cir.
2012). Moreover, the essence of NCR’s argument-that
fairness dictates that the disclosure of some
portions of the reports means the government must disclose
them in their entirety-is not a persuasive argument here
because the government’s references to its continued
work with Amendola were tangential and limited. As such, NCR
is not forced to labor under an unfairly incomplete record,
and in fact I conclude it would be unfair to require the
government to disclose the work product of its litigation
consultant merely because it made a few references to his
work at various points in this litigation. This court has
already held that, “[g]iven the limited disclosures
made here (which involved wiggle words like
“estimates” and “suggestions”), it
cannot be argued that the government's disclosures were
done selectively or that it had cherry-picked certain data in
order to create a misleading impression.” Appleton
Papers Inc. v. E.P.A., No. 11-CV-318, 2012 WL 1079884,
at *5 (E.D. Wis. Mar. 30, 2012).
not as though NCR has no recourse at all. First, the
government is not a party to the contribution action, which
is where NCR believes the information may be used against it.
Thus, it is difficult to envision how the government will
enjoy some sort of unfair litigation advantage over NCR.
Second, to the extent any other parties attempt to rely on
the government’s partial disclosures, NCR will be able
to point out any limitation arising out of the fact that we
have been presented with only limited information.
Conceivably, the absence of full disclosures will affect the
weight properly accorded to that information. Accordingly,
the motion  is DENIED. The duplicate motion filed in
No. 08-C-16 will also be denied.
The United States’ Rule 7(h) Motion to Compel
United States has filed a motion to compel certain documents
from Appvion. As with the documents described above, these
documents have been the subject of previous motion practice,
with this court denying motions to compel and for sanctions.
Previously, this court ruled that the documents sought, which
relate to UK litigation between B.A.T. and Appvion, were not
relevant to Appvion’s status as an indemnitor because
that issue had been decided by the Seventh Circuit. (ECF No.
1774.) More recently, this court “clarified, ” at
P.H. Glatfelter’s request, that Appvion’s status
had not in fact been conclusively resolved, because the
Seventh Circuit was merely concluding that Appvion could
sue under § 107, not that it definitively was a
PRP rather than an indemnitor. (ECF No. 1788.) Based on that
ruling, the government argues that the documents, which could
relate to Appvion’s status as either a PRP or an
indemnitor, are now in play and should be turned over. In
short, Appvion’s relevance argument is no longer
response relies on this court’s earlier rulings and
interpretations of the Seventh Circuit’s decision. As
just noted, however, Appvion’s status as either a PRP
or indemnitor has not been conclusively established, and so
the United States is correct that Appvion’s principal
relevance objection is unconvincing. Given the breadth of
discovery generally allowed, it is conceivable that the UK
litigation documents could be relevant or could lead to
relevant information. In the UK litigation, B.A.T. sought
indemnity from Appvion and Windward Prospects for Fox River
liability. In a dispute over indemnification of Fox River
expenses, it is not a stretch to believe that the nature of
Appvion’s own payments to NCR could have arisen. With
Appvion’s key relevance objection out of the way, the
documents should be produced.
motion  is DENIED. The duplicate motion filed in No.
08-C-16 will also be denied. The United ...