United States District Court, W.D. New York
Cheryl A. Foti, et al., Plaintiffs,
City of Jamestown Board of Public Utilities, et al., Defendants.
DECISION & ORDER
HUGH B. SCOTT, Magistrate Judge.
Currently pending before the court is the plaintiffs' motion to compel discovery, and other relief (Docket No. 74) and defendants' cross-motion for sanctions. (Docket No. 80).
The plaintiffs, Cheryl A. Foti, Dennis MCCullough, and Cynthia Loftus (referred to collectively as "Foti" or "the plaintiffs"), commenced this action under the Clean Water Act, 33 U.S.C. §§1311 et seq., against the City of Jamestown Board of Public Utilities ("BPU") and City of Jamestown ("Jamestown"). The plaintiffs allege that the defendants have failed to deal with sewer backups resulting in raw sewage flooding their property and homes in 2009. (Docket No.
1 at ¶¶ 12-34; Docket No. 77 at ¶¶26-27). The record reflects that some of the plaintiffs have been affected by repeated sewage backups, with as much as 39 inches of sanitary waste flooding basements, as far back as the 1990s. (Docket No. 69-1, Exhibit E). Eventually, the New York State Department of Environmental Conservation ("DEC") became involved and the defendants agreed to a Consent Order in 2006 acknowledging that certain Jamestown residents had been subjected to sewer backups in their basements constituting a "public health nuisance." (Docket No. 1 at ¶¶ 27).
The parties have had multiple discovery disputes in this case. The defendants filed a motion to compel (Docket No. 39). That motion was determined to be moot after the plaintiff's cross-motion to extend discovery was granted (Docket No. 49). Jamestown filed a second motion to compel (Docket No. 49) and the plaintiff filed a motion for a protective order (Docket No. 51). These disputes were resolved through facilitation with the Court (Docket No. 54). The plaintiff then filed a motion to compel (Docket No. 57), which was denied without prejudice after the parties advised the Court that they had resolved some, but not all of the discovery disputes. The Court directed the parties to re-file a motion containing only the remaining discovery issues (Docket No. 72). The plaintiff then filed the instant motion asserting those discovery disputes that remain unresolved. (Docket No. 74). The defendants have filed a cross-motion seeking sanctions (Docket No. 80).
Remaining Discovery Issues
Time Limitation Relating to Scope of Discovery
The plaintiffs complain that the defendants have unilaterally imposed a time restriction to the plaintiff's discovery requests in that the defendants would produce discovery going back only as far as June of 2009. The plaintiffs contend that the defendants should be required to produce relevant material that precedes the events of 2009. (Docket No. 77 at page 9). The defendants contend that the "relevant time period" is "June 20, 2009 to the present" because June 20, 2009 is the date of the first overflow set forth in the complaint. (See Docket No. 62, Exhibits A-D, ¶5 respectively). However, the plaintiffs complaint asserts that there have been "repeated" sewer discharges on their property which have required them to expend "a great deal of time and money" to repair their property. (Docket No. 1 at ¶25). The complaint specifically cites to two occasions, on June 20, 2009 and August 9, 2009. (Docket No. 1 at ¶¶28-34). The plaintiffs' also point to the 2006 Consent Order in which the defendants acknowledged that certain Jamestown residents had been subjected to sewer backups in their basements constituting a "public health nuisance." (Docket No. 1 at ¶¶ 27). In this regard, the record reflects correspondence dated July 5, 1994 from one of the plaintiffs, Dennis McCullough, to the defendants discussing damage to his property resulting from sewer backups on at least five occasions between 1991 and 1994. (Docket No. 69-1, Exhibit E). According to this correspondence, on more than one prior occasion Jamestown had previously accepted responsibility for the damages caused by the sewer backups and paid for the clean-up and damages. (Docket No. 69-1, Exhibit E at page 1). Further, issues regarding the sewer design and its history of overflows is relevant to the defendants' "upset defense" suggesting that the overflows of which the plaintiffs complain were the result of extraordinary weather and not the result of inadequately designed or maintained facilities. The plaintiffs have argued that the overflows are not "upset" events, but the result of specific design defects in the sewer system. (Docket No. 18 at page 23-24). Indeed, the record reflects that in 2007, Jamestown stated that its goal was to effectively manage the sewer system intake to avoid the far more costly alternative of sewer replacement or enlargement. (Docket No. 12-3 at page 5; Docket No. 18 at page 24). This reflects that the sewers in question may have been inadequate as originally designed. Thus, discovery prior to 2009 is relevant to the claims and defenses asserted in this matter. To the extent that they have not yet done so, or unless otherwise agreed to by the parties, the defendants are directed to supplement their discovery responses in this case to produce documents and other historical material relevant to the respective discovery requests for the time period as requested by the plaintiffs.
Whether the Documents Produced by E&M are Privileged
The parties dispute whether documents produced by a third party contractor E&M Engineering ("E&M") are privileged. The work product doctrine under Fed.R.Civ.P. 26(b) creates a qualified immunity from discovery for: (1) documents or tangible things, (2) prepared in anticipation of litigation or for trial, (3) by or for a party or by or for the party's representative. See 8 C. Wright & A. Miller, Federal Practice and Procedure §2024, at 196-97 (1970). Rule 26(b) (3) provides:
Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
The work product privilege establishes a zone of privacy for an attorney's preparation to represent a client in anticipation of litigation. See Hickman v. Taylor , 329 U.S. 495, 510-11 (1947); United States v. Adlman , 134 F.3d 1194, 1196 (2d Cir.1998). The party asserting the work-product privilege "bears the heavy burden of establishing its applicability." In re Grand Jury Subpoena Dated July 6 , 2005, 510 F.3d 180, 183 (2d Cir.2007). The privilege includes both opinion work product, such as an attorney's mental impressions or legal theories, and fact work product, such as factual investigation results. See In re Grand Jury Subpoena Dated July 6 , 2005, 510 F.3d at 183; see also Fed. R. Civ. Proc. 26(b)(3)(B) (codifying protection for opinion work product). In order for a party "to assert privilege under the attorney work product doctrine, they must be able to show that the document [was] prepared (1) in anticipation of litigation' (2) by a party or its representative and (3) not in the ordinary course of business." Ricoh Co., Ltd. v. Aeroflex Inc. , 219 F.R.D. 66, 68 (S.D.N.Y.2003); see also Schomburg v. New York City Police Dept., 298 F.R.D. 138 (S.D.N.Y., 2014). See also United States v. Adlman , 134 F.3d 1194, 1202 (2d. Cir. 1998) (the work product doctrine does not require that the documents be prepared at the behest of counsel, only that they be prepared "because of" the prospect of litigation.) See also United States v. Nobles , 422 U.S. 225, 238-39 (1975) ("attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial, " and therefore "the doctrine protect[s] material prepared by agents for the attorneys as well as those prepared by the attorney for himself."). Once a party establishes that its document is protected by the work-product privilege, the burden shifts to the party seeking discovery to prove that discovery is warranted. If a document constitutes fact work product, it is not discoverable absent a showing of "substantial need"; in contrast, opinion work product is not discoverable absent a "highly persuasive showing" of need. In re Grand Jury Proceedings , 219 F.3d 175, 190-91 (2d. Cir.2000); see United States v. Ghavami , 882 F.Supp.2d 532, 540 (S.D.N.Y.2012) (opinion work product "is entitled to virtually absolute protection").
Also, "[t]he privilege derived from the work product doctrine is not absolute[, ]... it may be waived." United States v. Nobles , 422 U.S. 225, 238-39 (1975). "The party asserting the protection afforded by the work product doctrine has the burden of showing both that the protection exists and that it has not been waived." Bank of Am., N.A. v. Terra Nova Ins. Co. , 212 F.R.D. 166, 169 (S.D.N.Y.2002). Ipse dixit assertions or unsupported conclusions are insufficient to establish the privilege. E.E.O.C. v. Johnson & Higgins, Inc. , 1998 WL 778369, *4 n. 4 (S.D.N.Y.1998) (attorney's conclusory statement that documents reflected the attorney's "thoughts, impressions and strategies" and were therefore protected was insufficient to establish work product protection) (citing In re Grand Jury Subpoena Dated Jan. 4 , 1984, 750 F.2d 223, 224-25 (2d Cir.1984)). "Opinion" work product, or work product "implicating the mental impressions, conclusions, opinions or legal theories of an attorney, " enjoys "near absolute immunity." In re Application of Minebea Co., Ltd. , 143 F.R.D. 494, 499 (S.D.N.Y. 1992).
A party will waive work product protection when it uses the protected documents "in a manner that is inconsistent with the protection." Id. at 170. Because the work product doctrine protects documents prepared in anticipation of litigation or for trial by or for another party or its representative, the test for waiver "is whether the disclosure at issue has "substantially increased the opportunities for potential adversaries to obtain the information." In re Vitamin C Antitrust Litig., 2011 WL 197583, at *2 (E.D.N.Y. Jan. 20, 2011) (quoting In re Visa Check/Master Money Antitrust Litig. , 190 F.R.D. 309, 314 (E.D.N.Y.2000). Generally, if a party discloses work product materials to an adversary, any privilege relating to those materials is waived. In re Steinhardt Partners, L.P. , 9 F.3d 230, 235 (2d Cir.1993) ("[I]f a party discloses work product materials to an adversary, the privilege is deemed waived."); Liz Claiborne, Inc. v. Mademoiselle Knitwear, Inc. , 1996 WL 668862 (S.D.N.Y., 1996) (Plaintiffs' failure to take the above precautions to prevent disclosure weighs in favor of a finding of waiver of work product protection.).
It is undisputed that prior to 2009 the defendants engaged E&M to assist the defendants with complying with the 2006 Consent Order. After the commencement of the instant action, the plaintiffs served a subpoena upon E&M seeking documents relevant to E&M's work in assisting Jamestown with the Consent Order (Docket No. 62, Exhibit J). According to the plaintiffs, E&M was known to have collected information concerning the sewer system, its design, its problem areas and remedial work to correct any problems. (Docket No. 62 at ¶ 45). After serving the subpoena but before obtaining any documents based upon the subpoena, counsel for the plaintiff states that he contacted counsel for the defendants to ensure that E&M was not the defendants' expert. (Docket No. 76 at page 3). According to the plaintiffs, counsel for the defendants did not object to the subpoena served upon E&M. (Docket No. 62 at ¶ 52; Docket No. 76 at page 3). The plaintiffs eventually reviewed the subpoenaed documents at the office of E&M's attorney, Brian Sutter, Esq. (Docket No. 76 at page 3). After determining that the documents were relevant, the plaintiff requested that the documents be copied. The plaintiffs obtained copies of the documents from E&M and provided a copy of all the produced E&M documents to the defendants. (Docket No. 76 at page 3). The plaintiffs assert that at no time prior to the inspection did the defendants object to the production of the E&M documents. Nor did the defendants list any of the documents produced by E&M on their privileged list. (Docket No. 62 at ¶¶ 56-57).
The instant dispute focuses on the January 13, 2012 letter from E&M's Project Manager Garrett M. Hacker to Michael Saar, an employee of the defendants ["the Hacker Letter"] (Docket No. 62; Exhibit L). According to this letter, Hacker met with Saar to inspect the sanitary sewer along Widrig Avenue to "determine if a bottleneck exists in the sewer along Widrig Avenue, and the cause of a sanitary sewer overflow event which occurred in June and August of 2009." (Docket No. 62, Exhibit L at page 1). Hacker stated that a review of the sanitary sewer map revealed the existence of a 23-inch high concrete "weir wall" constructed at the intersection of Waldrig and Hallock streets. (Docket No. 62, Exhibit L at page 1). Inasmuch as the defendants had not produced documents relating to the construction of the "weir wall, " the plaintiffs contend that the Hacker letter and other documents produced by E&M demonstrate that the defendants have knowingly failed to produce documents responsive to the plaintiffs' discovery ...