City of Wilmington v. United States
The City of Wilmington, Delaware, brought an action to recover "reasonable service charges" under the Clean Water Act for control and abatement of stormwater pollution. For nearly six years the city had assessed service charges on five properties owned by the Army Corps of Engineers located within the jurisdiction of the city, but the federal government failed to pay any of those stormwater fees. The city submitted discovery requests to the federal government, which were not answered and the city sought to compel discovery. One of the discovery requests sought an April 11, 2011, memorandum from the Department of Defense Deputy General Counsel concerning stormwater charges. The federal government objected to the release of the memo under the attorney-client privilege exception.
The Federal Court of Claims, however, granted the city's motion to compel. The court reviewed the memo in camera and determined that it was not privileged. The court determined that the memo summarized publicly available information and did not contain legal advice. The court further determined that the federal government's sole reason for failing to pay the stormwater fees was that the fees were not "reasonable" without any reasoning as to how it reached that conclusion. The court further held that the information that the city sought through discovery was relevant to the city's claims and that even if the memo was privileged the federal government had waived the privilege when it incorporated the allegedly privileged communications into agency policy and guidance.