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Supreme Court unseals DuPont legal memos in chemical suit

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Supreme Court unseals DuPont legal memos in chemical suit

  • The high court rejected DuPont’s claim that embarrassing legal documents inadvertently disclosed to plaintiffs are shielded by the attorney-client privilege.

May 26, 2004 — By a 5-0 vote, the West Virginia Supreme Court unsealed two e-mail messages and a memo in which DuPont’s in-house lawyers fret about the company’s possible liability for allegedly contaminating the Ohio River with a chemical used to manufacture teflon.

The court did not issue an opinion, but its May 6 order had the effect of making the documents available to the public as court records. At least one online news site, The Memory Hole, has already published the documents.

Dupont is defending a class-action lawsuit involving residents of West Virginia and southeast Ohio who assert harm from the company’s use of ammonium perfluoroctanoate, a chemical used to manufacture teflon. Up to 50,000 residents could meet the criteria to join the suit. The case is scheduled for trial in September.

In one of the e-mail messages, DuPont attorney John Bowman laments, “Our story is not a good one, [sic] we continued to increase our emissions into the river in spite of internal commitments to reduce or eliminate the release of this chemical into the community and environment.”

The legal dispute centered around the applicability of the attorney-client privilege, said Harry Deitzler, one of the attorneys for the plaintiffs.

DuPont claimed that the documents reflected the opinion of its counsel, and were therefore privileged and could not be disclosed, Deitzler said. In response, the plaintiffs successfully argued that the privilege was waived when DuPont inadvertently provided copies to outside parties in discovery.

Although the case did not directly raise a First Amendment issue, Deitzler said an important public interest was at stake.

“It is significant to citizen rights anytime courts allow access to information which opens the veil of secrecy surrounding corporate management and decision-making,” Deitzler said.

(Leach v. E. I. duPont de Nemours & Co.; Plaintiffs’ Counsel: Harry Deitzler, Hill Peterson, Carper, Bee & Deitzler, Charleston, W.Va.; Robert A. Bilott, Taft, Stettinius & Hollister, Cincinnati, Ohio) JM

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