Environmental enforcement actions are on the rise. In the last two months, the U.S. Environmental Protection Agency (EPA) has made headlines by issuing Requests for Information (RFI) to Halliburton and the State of Wisconsin. And, despite a recent decision by the federal district court for the District of Minnesota limiting the EPA's authority to issue such requests, the agency nonetheless maintains broad regulatory authority to issue RFIs.

Responding to an RFI can be an arduous and time-consuming process with significant traps for the unwary. Moreover, an RFI is often a precursor to an enforcement action, and the information obtained in response to an RFI may be used in administrative, civil and criminal proceedings. The following are some of the ways that you can minimize the risk to your business while fulfilling your legal obligations:

• Know your rights and the agency's limits. Responding to an RFI can divert significant resources away from the revenue-generating activities that advance your business. But failure to respond to a lawfully issued RFI can result in significant penalties. Therefore, as a threshold matter, you should assess whether you are obligated to respond. It is possible, for example, that the RFI was issued without legal authority or that a response is not mandatory. Understanding your rights and obligations at the outset will get you on the right track.
• Get more time if you need it. Agencies routinely issue RFIs that are broad in scope, require the assembly of highly technical information that spans many years, and demand a response within a short timeframe, such as 30 days. Time limits are not necessarily dictated by statute or rule, however, and you can often negotiate a less burdensome deadline.
• Disclose what you must and nothing more. Furnish only what you are legally obligated to provide and do not volunteer additional information. Prevent inadvertent disclosure by paying careful attention to the dates to which the RFI applies, the precise subject matter, the specific facilities or permits, and any other information that restricts the scope of the request.
• Issue a "litigation-hold letter." Consider issuing a litigation-hold letter immediately after receiving an RFI to ensure that responsive information is preserved. The failure to distribute such a letter could expose you to penalties or prejudice your legal rights. Be sure you distribute the letter to all individuals who are likely to possess responsive information.
• Create protocols and organize documents. Often the most time-consuming and frustrating part of responding to an RFI is locating, assembling and providing all relevant documents. Avoid confusion by creating protocols early in the process for locating and organizing documents, reviewing information and preparing responses. Additionally, develop a system for tracking information about the documents and number each document for easy reference. Implementing a long-term document management system at the outset can save substantial time and money.
• Protect privileged and confidential information. While agencies typically have broad authority when issuing an RFI, your business may be entitled to maintain the confidentiality of certain information or withhold certain documents on the basis of privilege. When gathering information, be sure your entire team is aware of privilege issues so that a privilege is not inadvertently waived or privileged information inadvertently disclosed. Moreover, you should strictly adhere to agency protocols with respect to the designation of confidential information, such as sensitive financial data or intellectual property, to ensure that the agency does not make such information available to the public.
• Engage your attorney early. In many ways, an RFI resembles written discovery in litigation and involves substantial questions relating to relevance, privilege and other legal issues. By involving your attorney early, you can maximize your ability to assert privilege claims and minimize disclosure requirements. As an intermediary, your attorney can also protect your legal interests while maintaining a productive and cooperative relationship with the agency.