United States District Court, W.D. New York
HUGH B. SCOTT, Magistrate Judge.
Before the Court is defendant Gould Electronics' ("Gould") motion to compel production from plaintiff ("plaintiff" or "NL") of non-privileged documents from third-party Advanced GeoServices Inc. ("AGC") (Docket No. 232). Responses to this motion were due by April 30, 2015, any reply by May 7, 2015, and the motion was deemed submitted on the papers on May 7, 2015 (Docket No. 233). Codefendant Halliburton wrote (Docket No. 234) requesting to adjust the current Fourth Amended Scheduling Order (Docket No. 231), and this Court instead held those deadlines in abeyance pending resolution of Gould's motion (Docket No. 235).
This is a CERCLA action arising from the cleanup at the Buffalo Plant Superfund site in Depew, New York (see Docket No. 154, Report & Rec., Feb. 15, 2012, at 2). Under the current Scheduling Order (Docket No. 231), liability phase discovery was to conclude by June 15, 2015, with dispositive motions on liability due by August 14, 2015 (id.), but that schedule has been held in abeyance given the pending motion (Docket No. 235).
Gould contends that non-party AGC is an environmental engineering firm hired by plaintiff to manage the cleanup of residential properties in Depew that the United States Environmental Protection Agency ("EPA") determined were contaminated from plaintiff's brass foundry and "develop and present technical arguments to persuade [the] EPA to treat Gould... and other defendants as liable parties under the federal Superfund law, rather than" plaintiff (Docket No. 232, Def. Gould Memo. at 1). Gould claims that plaintiff cites to AGC to support its contentions that others, including Gould, are responsible rather than plaintiff and identified two AGC employees as fact witnesses that plaintiff may use to support its claims at trial (id.).
Gould sought documents from plaintiff and later subpoenaed AGC for discoverable material given AGC's involvement in the Phase I removal and plaintiff identifying two AGC officials as having discoverable information (id. at 8-9). On February 20, 2015, plaintiff provided a privilege log for AGC documents withheld from production to Gould, with some log entries listing documents without full identifying information (as to the date, author, and/or recipient of the withheld items) (id. at 9). Gould requested that plaintiff withdraw its attorney-client privilege claims because the contractor provided non-legal services and thus did not fall under the privilege or waived such privilege by providing some of these documents to the EPA (id. at 10). Plaintiff then submitted a revised privilege log, reasserting the privilege as to some documents (id. at 10-11). Disputed now are 192 digital AGC documents and 11 hard copies (id. at 11). Gould seeks production of four categories of claimed privileged AGC documents: materials related to the January 17, 2007, presentation and February 28, 2007, letter to the EPA; emails regarding AGC's investigation of the sources of fill material and "other potentially responsible parties"; emails regarding other meetings and correspondence with the EPA; and documents regarding soil sampling, fill material, excavation/aerial photographs, air models, "wind, " and an unidentified "interview" (id. at 12-13).
Specifically, these documents can be divided into four categories. Group A constitutes 66 documents which are drafts of plaintiff's eventual February 28, 2007, correspondence to the EPA and internal correspondence regarding that letter (Docket No 236, Pl. Atty. Decl. ¶ 18). Group B is 7 documents that are internal to plaintiff, its counsel, and AGC correspondence regarding legal options following discovery of black, foreign fill during Phase I cleanup (id. ¶ 19). Group C consists of four documents, two of which are drafts of the February 28, 2007, EPA letter that are duplicates within Group A and two non-privileged documents that were separately produced (id. ¶ 20). Finally, Group D is 43 documents of cover emails between AGC, plaintiff, and plaintiff's counsel exchanging Sanborn maps or other factual material "related to the development of NL's legal strategy" (id. ¶ 21). Included with this last group are six documents (Nos. 167-72 of the Privilege Log) that were produced to Gould (Docket No 236, Pl. Atty. Decl. ¶ 21).
Gould argues that communication to and from AGC should not be privileged as attorney-client communication (Docket No. 232, Def. Gould Memo. at 14-18). Gould contends that communications to and from AGC, as a non-party environmental consultant, was not shielded by attorney-client privilege since AGC was not providing legal services and were not attorney-client communications (id. at 14-16). These documents also are not communications from AGC as an interpreter or translator, assisting the attorney-client communication to retain confidentiality and the privilege despite going to a third party (id. at 16-17). By sending them to AGC, Gould concludes that plaintiff waived any attorney-client privilege (id. at 16-18), despite plaintiff's protestations that the communications were at the direction of counsel (id. at 17-18). Plaintiff also waived whatever privilege it had by presenting some of these privilege log documents to the EPA (id. at 18-22). Gould also argues that plaintiff waived any privilege by intending to call AGC personnel as fact witnesses (id. at 22-24), United States v. Nobles, 422 U.S. 225, 239-40 (1975).
Plaintiff claims privilege for these documents as "internal comments on working drafts of legal position papers, communications between NL, its consulting expert and its counsel to evaluate its legal options, and cover emails responding to specific information requests by NL or its counsel, " which plaintiff had not waived (Docket No. 236, Pl. Memo. at 11, 12-15). Plaintiff responds that AGC is an environmental consulting firm which serves as a consulting expert to help plaintiff evaluate potential claims it may have against Gould and the other defendants and evaluate plaintiff's potential defenses against the EPA (id. at 1). Of the nearly 11, 000 documents produced by AGC pursuant to the subpoena, in dispute are 11 hard copy pages and 192 digital documents that plaintiff claims are privileged (id.). Plaintiff argues that these documents are covered either by attorney work product (id. at 11-12) or attorney-client privileges (id. at 16-17) for the email exchanges between plaintiff and its attorneys (id.), including representatives of attorneys, such as non-testifying experts (id. at 17). The two AGC officials identified by plaintiff are not experts, hence their correspondence (and the rest of AGC privileged documents) regarding plaintiff's legal position (and not the facts) constitute work product (id. at 17).
Gould replies that plaintiff cannot now recast AGC's role, that this firm has fact witnesses and is not a "consulting expert" to keep its correspondence confidential (Docket No. 237, Def. Gould Reply Memo. at 2). AGC officials are not experts employed for trial preparation or will be called as expert witnesses in this case to have Rule 26(b)(4)(D) apply (id. at 2-3). Gould next argues that plaintiff cannot rely upon Rule 26(b)(3)(B) to exclude disclosure of core opinion work product since AGC's materials do not meet that rule's standard (id. at 4-5) and opinion work product is usually legal opinion, see Favors v. Cuomo, 285 F.R.D. 187, 199 (E.D.N.Y. 2012) (id. at 5). Gould faults the privilege log for not allowing opponents to assess the confidentiality claims for the listed privileged documents (id. at 6-7). Gould denies that AGC was a "client information translator" for plaintiff and its attorney to retain the attorney-client communication privilege (id. at 7). As work product, Gould concedes that these documents might have been prepared in anticipation of litigation but plaintiff ultimately waived this privilege by disclosing AGC's technical analyses to EPA by listing two AGC employees as fact witnesses (id. at 9-10).
As for the non-privileged or already produced items (portions of Group C and Group D) on plaintiff's privilege log, Gould's motion to compel their production is deemed moot. For example, from Group D, six documents (entries 167-72) were already produced (Docket No. 236, Pl. Memo. at 10), while other parts of Group D were transmitting memoranda for Sanborn maps and other items that were produced (id. at 9, 10). Similarly, duplicate documents in Group C to those identified in Group A need not be produced twice. Thus, at issue are documents in Groups A (documents leading to the EPA presentation in 2007) and B (documents discussing what to do about the discovery of black fill material during Phase I of the cleanup) (id. at 9).
The parties discuss two privileges (cf. id. at 16), with Gould arguing against attorney-client communication privilege (Docket No. 232, Def. Gould Memo. at 14-18; Docket No. 237, Def. Gould Reply Memo. at 6-8) and plaintiff arguing attorney work product (Docket No. 236, ...