Valley Forge Insurance Company v. Hartford Iron & Metal Inc et al
Filing
675
OPINION AND ORDER: The Court CONCLUDES (after an in camera review) that Defendant Hartford Iron & Metal Inc's communications with environmental contractors Keramida and CH2M are not protected by the attorney-client privilege, but are, in part, protected by the work-product doctrine. Defendant Hartford Iron and Metal Inc ORDERED to produce the non-privileged documents to Plaintiff Valley Forge Insurance Company by April 28, 2017. Parties ORDERED to meet and confer in good faith--applying the legal standards and conclusions articulated herein--to resolve any disputes pertaining to the attachments that may remain after the entry of this Opinion and Order. Signed by Magistrate Judge Susan L Collins on 4/14/17. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
VALLEY FORGE INSURANCE COMPANY,
Plaintiff and Counter-Defendant,
v.
HARTFORD IRON & METAL, INC., et al.,
Defendants and Counter-Claimants.
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No. 1:14-cv-00006-RLM-SLC
OPINION AND ORDER
Before the Court for an in camera review are 185 emails or email threads which
Defendants and Counter-Claimants Hartford Iron & Metal, Inc., and Alan B. Goldberg, doing
business as Hartford Iron & Metal (together, “Hartford Iron”), withheld as privileged in response
to discovery requests by Plaintiff and Counter-Defendant Valley Forge Insurance Company
(“Valley Forge”).1 The emails, which consist of Hartford Iron’s communications with
environmental contractors Keramida, Inc. (“Keramida”), and CH2M Hill, Inc. (“CH2M”), were
the subject of a motion to compel filed by Valley Forge (DE 458), which the Court addressed
and ruled on at a hearing in November 2016 (DE 563; DE 568). When ruling, the Court left the
door open for an in camera review of the emails should the parties not be able to resolve what
remained of their discovery dispute after the ruling. (DE 568 at 8).
1
When submitting the documents for the in camera review, Hartford Iron labeled the 185 emails or email
threads as “A” documents. (DE 633-1 at 1-77; DE 633-2 at 1-21). Together with the “A” documents, Hartford Iron
submitted—without leave of Court—123 additional emails or email threads that it labeled as “B” documents. (DE
633-1 at 78-82; DE 633-2 at 22-24). Hartford Iron, however, had already represented to Valley Forge in December
2016 that it would produce these 123 documents by January 17, 2017, but Hartford Iron had not done so. (DE 598 at
3-5; DE 598-1 at 3-6; DE 598-2 at 3-5; DE 636). Soon after the Court indicated that Hartford Iron’s submission of
additional documents without leave of Court was “not looked upon favorably” (DE 654 at 4), Hartford Iron produced
the “B” documents to Valley Forge. Therefore, the “B” documents included on the privilege logs are no longer in
issue.
The parties ultimately could not resolve their dispute, and on January 10, 2017, the Court
granted Valley Forge’s motion for an in camera review of the emails. (DE 606; DE 614). The
issue has been fully briefed, and oral argument has been heard on the motion. (DE 458; DE 459;
DE 473; DE 479; DE 563; DE 568; DE 606; DE 614; DE 633; DE 635; DE 636).
Having now completed an in camera review of the emails,2 the Court concludes for the
following reasons that the emails are not protected by the attorney-client privilege, but that some
of the emails are protected by the work-product doctrine.3
I. FACTUAL AND PROCEDURAL BACKGROUND4
Hartford Iron owns and operates a scrap metal recycling operation in Hartford City,
Indiana. (DE 6-1 at 1). Valley Forge, Hartford Iron’s insurer, filed this suit against Hartford
Iron in January 2014, claiming that Hartford Iron had breached a second settlement agreement
entered into by the parties in December 2012 that purported to settle the parties’ respective rights
and duties under certain insurance contracts relating to an environmental clean-up site on
Hartford Iron’s property. (DE 1).
2
The Court did not find it necessary to review the voluminous attachments submitted with the emails for
purposes of ruling on whether the emails were privileged. Performing an in camera review of the attachments would
be overly burdensome on the Court. The Court asked Hartford Iron’s counsel about the attachments at a recent
hearing, and Hartford Iron’s counsel represented that Valley Forge had already been given “an extensive” portion of
the attachments. (DE 663). The Court will not undertake an overly burdensome in camera review of a voluminous
number of documents where many of the documents have already been produced. Accordingly, the parties will be
ORDERED to meet and confer in good faith—applying the legal standards and conclusions articulated herein—to
resolve any disputes pertaining to the attachments that may remain following the entry of this Opinion and Order.
3
At the hearing on November 4, 2016, the Court rejected Hartford Iron’s argument that the Keramida and
CH2M communications are also protected under an “expert privilege.” (DE 563; DE 568; DE 606-1 at 112).
Therefore, there is no need to address Hartford Iron’s initial claim of an “expert privilege”; nor does Hartford Iron
assert an “expert privilege” on its privilege logs. (See DE 633-1; DE 633-2).
4
The factual background of this case is very complicated (the docket entries are now approaching 700) and
is known to the parties. Therefore, the Court will summarize only a brief factual background pertinent to the in
camera review.
2
The following events precipitated the parties entering into the second settlement
agreement:
•
In April 2009, Hartford Iron and Valley Forge entered into a settlement allocating
responsibilities between them with respect to an agreed order between Hartford
Iron and Indiana Department of Environmental Management (“IDEM”) that was
then adopted by IDEM in May 2009.
•
In August 2011, the Environmental Protection Agency (“EPA”) sent Hartford
Iron a notice of intent to file a civil administrative claim.
•
In October 2011, Hartford Iron sued Valley Forge in state court.
•
From March 2012 to August 2012, Hartford Iron received correspondence from
the EPA regarding civil penalties and environmental remediation to be conducted
at the Hartford Iron site.
•
In April 2012, IDEM issued a remediation request, directing Hartford Iron to
submit a remediation work plan for the site. Hartford Iron did so in July 2012.
(DE 6-1 at 1).
A. The Relevant Terms of the Second Settlement Agreement
Under the terms of the second settlement agreement, Valley Forge was authorized to
appoint new defense counsel, subject to Hartford Iron’s approval, to represent Hartford Iron with
respect to the EPA and IDEM claims and the remediation work plan for the site. (DE 6-1 at 2-3).
The defense counsel’s duties were described in the agreement as follows:
Anticipated tasks include legal work to defend Hartford Iron against the EPA and
IDEM claims, to handle negotiations with the agencies, to supervise the
environmental consultant, and to represent Valley Forge’s recognized interests in
controlling the costs and obtaining agency approval of the most cost effective
remediation alternative that protects Hartford Iron’s interests at the site.
(DE 6-1 at 2). The second settlement agreement also provided that Valley Forge could replace
its current environmental consultant, HydroTech Corporation, with another environmental
consultant, August Mack Environmental, Inc. (“August Mack”). (DE 6-1 at 2). August Mack’s
3
duties were described in the agreement as follows:
August Mack will carry out, at [Valley Forge’s] expense, the Remediation Work
Plan (July 31, 2012) for the Property, as approved or modified by IDEM and/or
EPA. August Mack may initiate requests for amendment or modification. Prior
to Remediation Work Plan approval, August Mack’s work will include: (i)
effective immediately, prevention of illegal stormwater discharges; (ii)
installation and operation of a temporary stormwater treatment system pursuant to
the Industrial Wastewater Treatment Construction Permit; and (iii) treatment
and/or off-site disposal of contaminated stormwater currently in storage tanks on
site and disposal of drummed wastes currently in storage. August Mack will also
modify the Remediation Work Plan to incorporate agency comments, and will
prepare and implement future work plans as required by IDEM or EPA for
subsequent steps in the site remediation.
(DE 6-1 at 3).
B. Relevant Facts as to Keramida
In December 2013, Valley Forge appointed Attorney Jamie Dameron as Hartford Iron’s
defense counsel pursuant to the terms of the second settlement agreement. (DE 455-6 at 1 ¶ 2).
Dameron had approximately nine years experience in private practice largely focusing on
environmental law and about 20 years experience “as a professional with clients performing
environmental cleanups”; Dameron was an “environmental consulting geologist” prior to
practicing law. (DE 45-55 at 1 ¶ 3).
Dameron soon concluded that there were serious problems in the stormwater collection
system constructed by August Mack. (DE 373-6 at 1-2 ¶ 4). By March 2014, Dameron
conveyed her concerns to Hartford Iron and Valley Forge and advised that they “obtain other
perspectives on the maintenance and operation of [the stormwater] system” (DE 45-25) from
“other storm water consultants” (DE 45-24), such as Keramida (DE 45-25). More particularly,
Dameron wrote:
August Mack sent an email yesterday indicating that it would like to send the
4
certified operator out to the site to do a system inspection. . . . This has me
thinking specifically about the approach of getting different perspectives and
useful information in the short term and then using that information to build on
longer term solutions.
I suggest that the outside storm water consultant also do a system inspection
identifying issues, improvements and any other recommendations. I will initiate
this with a phone call and brief RFP for those interested. We will move forward
with a scope/retention letter from this office with a follow up providing system
information on the pending sump/pump installs, flow diagram, other system
details including past regulatory/collection challenges. If we see value, then the
next part of this effort is to solicit proposals for certain improvements/alternatives
and the operation and maintenance. This second proposal would be based on the
information learned during the inspection scope. These tasks may evolve slightly
as I discuss the initial inspection scope with the consultants, but I wanted to
provide an idea for the framework.
....
We will soon be discussing the noncompliance events and how to achieve
effective and efficient storm water treatment with IDEM, and possibly EPA. I am
recommending this storm water treatment assessment effort because it will likely
offer value now on a number of defense-related regulatory issues as well as
promote efficiency in treating the industrial storm water.
(DE 45-24).
Near that same time, Dameron sent an email to Keramida, stating:
The requested proposal and work for inspection of storm water collection and
treatment system are for the purpose of facilitating legal advice to Hartford Iron;
therefore, the work must be done such that legal privileges are preserved, unless
otherwise directed by me. The facility is also under agency enforcement so the
work is being performed in the midst of litigation and in anticipation of additional
litigation. Please do not disclose any communications or work, including this
email, to any third parties. Take reasonable steps necessary to ensure
confidentiality. I recommend marking all communications - Confidential:
Privileged Attorney-Client Communication/Work Product. I am requesting a
proposal with an SOQ for system inspection services and an inspection report. . . .
A goal of this effort is to evaluate and improve system operation in the short term
and ensure that it is adaptable for changes to the storm water expected during and
after IDEM directed soil remediation. If selected for these services, invoices will
be sent to my firm . . . . Direct billing to the insurers may be more practical in the
future, should Keramida be selected to provide additional storm water consulting
5
and system operation services.
(DE 473-10). In April 2014, Dameron’s law firm, with Valley Forge’s approval, hired
Keramida. (DE 455-6 at 2 ¶ 5).
In June 2014, Keramida summarized its findings from its evaluation and inspection of the
Hartford Iron site and identified necessary changes to the stormwater system. (DE 45-26; DE
455-6 at 2 ¶ 5). That same month, Dameron followed up with Valley Forge on her
recommendation “to develop a planned storm water treatment system to replace the current ad
hoc arrangement,” stating that “Keramida has expertise in this field that [August Mack] appears
to be missing.”5 (DE 45-19 at 1).
In November 2014, Keramida completed a design plan for stormwater control at Hartford
Iron, indicating that installing an effective stormwater control system would be “a substantial
construction project.” (DE 173-2 at 2 ¶¶ 5, 31).
In December 2014, IDEM issued a violation letter to Hartford Iron based on illegal
discharges of stormwater at the site from the existing August Mack system. (DE 173-2 at 8 ¶
32).
In April 2015, Dameron in an email discussed Valley Forge’s recent approval of “an
$832,000 budget for work to intercept PCB-contaminated stormwater at the Hartford Iron site to
prevent stormwater from running into the public street with every significant rain or snow melt.”
(DE 373-6 at 19). She proposed a meeting with Valley Forge and Keramida “regarding the work
5
In her February 2015 affidavit, Dameron stated that she “hired Keramida Environmental with the
approval of [Valley Forge] based on [her] opinion that it has substantially more expertise than [August Mack]
regarding control of stormwater.” (DE 45-55 at 4 ¶ 14). One year later, in a February 2016 affidavit, Dameron
stated that her firm hired Keramida as an “expert stormwater contractor” and that she incorporated Keramida’s
recommended changes into her “defense planning for Hartford Iron.” (DE 373-6 at 2 ¶ 5).
6
to install the most appropriate engineering solution to intercept the stormwater and to provide the
most effective storage of the stormwater pending treatment.” (DE 373-6 at 19).
In July 2015, IDEM approved the November 2014 plan, provided regulatory comments
and instructions, and required further planning documents within 30 days.6 (DE 173-2 at 8 ¶ 35;
DE 367-3 at 20-23). Keramida then incorporated IDEM’s comments in the required planning
documents. (DE 173-2 at 8 ¶ 35; DE 367-3 at 26-30).
In September 2015, Keramida sent a letter to Hartford Iron summarizing “its estimates of
services and construction costs related to the installation of a storm water management system
for the [Hartford Iron] facility.” (DE 479-4 at 1). Keramida indicated that “[s]tandard
construction contracts will be executed between Hartford Iron and Keramida,” with Keramida’s
duties to include “on-site technical oversight, sampling activities, laboratory analysis, contractor
management, compilation of bid packages, review of bids, laboratory costs and payment from
the . . . funding provided by [Valley Forge].” (DE 479-4 at 3). Hartford Iron accepted the terms
of Keramida’s proposal and retained Keramida. (DE 459-5 at 1-2; DE 473-11). The terms of the
agreement included that, “[i]n light of the pending litigation,” Keramida was to “communicate
only with Hartford Iron and Hartford Iron’s counsel” and “make all reasonable efforts to
maintain privilege and confidentiality of such communications.” (DE 473-11 at 5).
That same month, Hartford Iron submitted a noncompliance notification report to IDEM,
stating that August Mack and Valley Forge “designed and operate a defective, one-of-a-kind
system for collection and treatment of PCB-contaminated industrial stormwater at the Hartford
6
Dameron suspended most of her defense work as of July 15, 2015, due to Valley Forge’s failure to pay
her fees after January 2015. (DE 173-11 at 3-4).
7
Iron site,” and that “Keramida Environmental is ready to carry out an IDEM-approved plan for a
properly designed, industry-standard collection and treatment system.” (DE 274-9 at 1-2). Near
that same time, Hartford Iron’s counsel, Attorney Mark Shere, sent a letter to Valley Forge’s
counsel, seeking a “pre-construction deposit of $469,200” so that Keramida could “start
construction of the IDEM-approved stormwater control system and start the IDEM-approved
‘two-grid’ excavation.” (DE 191-5 at 1).
In May 2016, Dameron wrote in an email to Valley Forge that August Mack had “put in
place a defective storm water system that is incredibly expensive to operate month-to-month.”
(DE 455-17 at 2). She further indicated that “[a] new system, designed by Keramida, Inc. and
approved by IDEM, will correct the defects in August Mack’s work and stop the runaway costs.”
(DE 455-17 at 2).
C. Additional Relevant Facts as to CH2M
In April 2014, Dameron stated in an email to CH2M:
Thanks for your time on the phone today. The site is in IDEM and USEPA
enforcement. Please take steps to keep proposal and project information
confidential as I am requesting services for the purposes of providing legal
services to my client, Hartford Iron . . . .
As we discussed, site-wide soil remediation (via phases of excavation) will
require relocation of scrapyard operations into a quadrant where soil has been
excavated. There are also storm water compliance and related drainage aspects
that are important for the relocated operations site and plan work. We are seeking
an SOQ and proposal for industrial/engineering design services.
(DE 473-13 at 1). The following month, Dameron informed Valley Forge that CH2M was
“working on its design services proposal for grading/stormwater routing/operations relocation
during remediation . . . .” (DE 479-6).
In June 2014, Dameron forwarded to Valley Forge and Hartford Iron, CH2M’s “proposal
8
for design services related to the excavation and disposal of polychlorinated biphenyl (PCB)impacted soils, storm water control, and moving operations and associated infrastructure to Area
1 at the Hartford Iron . . . facility.” (DE 479-7 at 2). Hartford Iron’s remediation work plan for
IDEM was later revised to reflect that CH2M would complete soil testing and installation of the
permanent groundwater monitoring wells, carry out initial excavation of certain grid areas, and
backfill the grids and install physical barriers to prevent cross-contamination. (DE 173-8 at 5-6).
In March 2015, Dameron’s firm entered into a “standard agreement for professional
services” with CH2M for the provision of the services identified in CH2M’s proposal. (DE 47312).
II. THE ATTORNEY-CLIENT PRIVILEGE
A. Applicable Legal Standard
“The attorney-client privilege protects communications made in confidence by a client to
[its] attorney in the attorney’s professional capacity for the purpose of obtaining legal advice.”
Jenkins v. Bartlett, 487 F.3d 482, 490 (7th Cir. 2007) (citation omitted). The elements of the
attorney-client privilege are: “(1) where legal advice was sought; (2) from a professional legal
advisor in his capacity as such; (3) the communications relating to that purpose; (4) made in
confidence; (5) by the client; (6) are at his instance permanently protected; (7) from disclosure
by himself or by the legal advisor; (8) except the protection may be waived.”7 Long v. Anderson
Univ., 204 F.R.D. 129, 134 (S.D. Ind. 2001) (citing United States v. Evans, 113 F.3d 1457, 1461
7
“[F]ederal courts presiding over a diversity action . . . look to state law, not federal law, in determining the
existence and scope of the attorney-client privilege.” Bartlett v. State Farm Mut. Auto. Ins. Co., 206 F.R.D. 623, 626
(S.D. Ind. 2002) (citations omitted). Here, the parties do not dispute that Indiana law applies. In contrast, federal
law governs the work-product doctrine. See Fed. R. Civ. P. 26(b)(3); Urban Outfitters, Inc. v. DPIC Cos., 203
F.R.D. 376, 379 (N.D. Ill. 2001).
9
(7th Cir. 1997); Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000)).
The attorney-client privilege “should be strictly confined within the narrowest possible
limits.” Hamdan v. Ind. Univ. Health N., LLC, No. 1:13-cv-00195-WTL-MJD, 2014 WL
2881551, at *2 (S.D. Ind. June 24, 2014) (quoting United States v. Lawless, 709 F.2d 485, 487
(7th Cir. 1983)). “The party seeking protection from the privilege has the burden to establish all
of the essential elements.” Id. (citing United States v. White, 950 F.2d 426, 430 (7th Cir. 1991)).
The attorney-client privilege can extend to consultants hired by the attorney on behalf of
a client. See Reginald Martin Agency, Inc. v. Conseco Med. Ins. Co., 460 F. Supp. 2d 915, 919
(S.D. Ind. 2006) (“Indiana deems communications between clients and agents of the client’s
attorney and communications between the client’s and attorney’s agents privileged.” (citing
Brown v. State, 448 N.E.2d 10, 14 (Ind. 1983))); see also In re Witham Mem’l Hosp., 706 N.E.2d
1087, 1090-91 (Ind. Ct. App. 1999).
Just as communications made directly between an attorney and his or her client
are privileged, so too are communications between attorneys and the experts or
investigators they hire on behalf of a client, as well as communications between
agents of the client and agents the attorney hires on behalf of a client. The
attorney-client privilege attaches to communications between the client and the
agent of the attorney, as long as 1) the communication involves the subject matter
about which the attorney was consulted and 2) the agent was retained by the
attorney for the purpose of assisting the attorney in rendering legal advice to or
conducting litigation on behalf of the client.
In re Witham Mem’l Hosp., 706 N.E.2d at 1090-91 (citing Brown, 448 N.E.2d at 14).
However, “[o]nly where the document or communication is primarily concerned with
legal assistance does it come within the attorney-client privilege.” Dometic Sales Corp. v.
Intertherm, Inc., No. S87-81, 1988 WL 492342, at *10 (N.D. Ind. Mar. 28, 1988) (citing Loctite
Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir. 1981) (other citations omitted)).
10
“[C]ommunications made in the routine course of business, such as transmittal letters or
acknowledgment of receipt letters, which disclose no privileged matters and which are devoid of
legal advice or requests for such advice are not protected.” Id. (citation omitted).
B. The Attorney-Client Privilege Does Not Extend to Hartford
Iron’s Communications with Keramida and CH2M
Hartford Iron claims that all of the withheld emails are protected by the attorney-client
privilege, asserting that the emails were confidential communications, between its counsel and
an agent hired by counsel, to aid counsel in providing legal advice to Hartford Iron. Valley
Forge disagrees, contending that the primary purpose in retaining Keramida and CH2M was not
to provide legal advice, but rather, to provide environmental remediation services—that is, to
design and construct a new stormwater control system.
As stated earlier, “[t]he attorney-client privilege may cover communications made to
agents of an attorney . . . hired to assist in the rendition of legal services.” U.S. Postal Serv. v.
Phelps Dodge Ref. Corp., 852 F. Supp. 156, 161 (E.D.N.Y. 1994) (alteration in original) (citing
United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989); United States v. Kovel, 296 F.2d
918 (2d Cir. 1961)) (analyzing the issue of whether the communications of an environmental
consultant were privileged);8 see also In re Witham Mem’l Hosp., 706 N.E.2d at 1090-91.
“[T]he attorney-client privilege can attach to reports of third parties made at the request of the
attorney or the client where the purpose of the report was to put in usable form information
obtained from the client.” Phelps Dodge Ref. Corp., 852 F. Supp. at 161 (citation omitted); see
Heriot v. Byrne, 257 F.R.D. 645, 666 (N.D. Ill. 2009) (“[T]he attorney-client privilege should be
8
Neither party cites a similar case involving an environmental consultant that was decided under Indiana
law; nor has the Court noted such a case in its own research. Therefore, the Court has considered similar cases in
other jurisdictions as persuasive authority.
11
limited to instances where a third party . . . assists a lawyer in giving legal advice, and where the
third party’s participation was required to enable the attorney to render legal advice.” (citation
and internal quotation marks omitted)). That is, the attorney-client privilege may attach where
the third party—for example, an accountant—acts akin to “a translator who puts the client’s
information into terms that the attorney can use effectively.” Phelps Dodge Ref. Corp., 852 F.
Supp. at 161 (citation omitted).
“[W]hat is vital to the privilege is that the communication be made in confidence for the
purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but only
accounting service . . . or if the advice sought is the accountant’s rather than the lawyer’s, no
privilege exists.” In re Grand Jury Proceedings, 220 F.3d 568, 571 (7th Cir. 2000) (alterations
in original) (quoting United States v. Brown, 478 F.2d 1038, 1040 (7th Cir. 1973)). That is,
“when a client’s ultimate goal is not legal advice, but is rather accounting, medical, or
environmental advice, the privilege is inapplicable.” In re Grand Jury Matter, 147 F.R.D. 82,
885 (E.D. Pa. 1992); see also Heriot, 257 F.R.D. at 666 (same).
Here, although Dameron’s firm initially retained Keramida and CH2M, “retention or
employment by the attorney alone is insufficient to bring the consultant within the scope of the
attorney-client privilege.” AVX Corp. v. Horry Land Co., No. 4:07-cv-3299-TWL-TER, 2010
WL 4884903, at *8 (D.S.C. Nov. 24, 2010) (citing Kovel, 296 F.2d at 922). As explained above,
it is vital that the communication be made “for the purpose of obtaining legal advice from the
lawyer.” Id. (quoting Kovel, 296 F.2d at 922). Here, however, it is quite obvious that
Dameron’s firm retained Keramida and CH2M for purposes other than “specifically to assist
[her] in rendering legal advice.” Phelps Dodge Ref. Corp., 852 F. Supp. at 161.
12
Keramida and CH2M—like HydroTech and August Mack before them—were hired to
design, build, and install a stormwater remediation plan that would be acceptable to IDEM and
the EPA. In doing so, they “were not simply putting into usable form information obtained from
the client.” AVX Corp., 2010 WL 4884903, at *9 (citations omitted); see Occidental Chem.
Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 437-38 (W.D.N.Y. 1997) (rejecting
plaintiff’s claim of attorney-client privilege where the record revealed that the design consultant
was retained to formulate a remediation plan for the clean-up site, rather than “specifically to
assist [counsel] in rendering legal advice”). In fact, it is evident that the assistance rendered by
Keramida and CH2M “was based on factual and scientific evidence obtained through studies and
observation of the physical condition of the [Hartford Iron] site, and not through client
confidences.” Occidental Chem. Corp., 175 F.R.D. at 437.
Moreover, by September 2015, Hartford Iron had entered into a standard construction
contract directly with Keramida. Thus, “the environmental consultants were not simply
providing technical assistance to the attorneys for the purpose of rendering legal advice, rather
they were providing environmental services directly to [Hartford Iron].” AVX Corp., 2010 WL
4884903, at *9; see ECDC Envtl., L.C. v. N.Y. Marine & Gen. Ins. Co., No.
96CIV.6033(BSJ)(HBP), 1998 WL 614478, at *8 (S.D.N.Y. June 4, 1998) (concluding that the
consultants were hired to provide analysis of test data and technical assistance concerning the
clean-up, not to “translate” technical information transmitted from the plaintiff for the benefit of
plaintiff’s attorneys). The provision of environmental consulting advice or services falls outside
the attorney-client privilege, which is to be “strictly confined within the narrowest possible
limits.” Hamdan, 2014 WL 2881551, at *2; see AVX Corp., 2010 WL 4884903, at *9; ECDC
13
Envtl., L.C., 1998 WL 614478, at *8-9; In re Grand Jury Matter, 147 F.R.D. at 84-85
(explaining that the attorney-client privilege is limited in that “when a client’s ultimate goal is
not legal advice, but rather is . . . environmental advice, the privilege is inapplicable”).
It is apparent that Dameron employed language at times in a deliberate effort to bring
Keramida and CH2M within the privilege. (See, e.g., DE 473-10; DE 473-13 at 1). But labeling
communications as “privileged and confidential” or “attorney-client work product” “does not
render the documents privileged when they contain no communication made or work done for
the purpose of providing informed legal advice.” In re Grand Jury Matter, 147 F.R.D. at 87; see
Graff v. Haverhill N. Coke Co., No. 1:09-cv-670, 2012 WL 5495514, at *44 (S.D. Ohio Nov. 13,
2012) (“Simply labeling a document as protected by a privilege does not make it so where a
party fails to satisfy all of the criteria for the attorney-client privilege.”).
In fact, at times, Dameron’s role as defense counsel appeared to morph into that of an
environmental consultant, most likely due to her extensive experience performing clean ups as
an environmental consulting geologist prior to practicing law. (See DE 45-55 at 1 ¶ 3).
Ultimately, Dameron’s initial retention of Keramida did not appear to be because she needed
information translated into a useable form so that she could render legal advice; rather, Dameron
quickly spotted problems with August Mack’s stormwater collection system and urged Valley
Forge and Hartford Iron to get a second opinion from another environmental contractor. But
“[h]iring lawyers to do consultants’ work does not bring a privilege into play.” Burden-Meeks v.
Welch, 319 F.3d 897, 899 (7th Cir. 2003). “[T]he privilege is limited to situations in which the
attorney is acting as a legal advisor—business and financial advice are not protected.” RBS
Citizens, N.A. v. Husain, 291 F.R.D. 209, 217 (N.D. Ill. June 4, 2013) (citing Burden-Meeks, 319
14
F.3d at 899). The communications to or from Keramida and Hartford Iron’s counsel, and to or
from CH2M and Hartford Iron’s counsel, fail to show “that the communication involved
gathering information from client confidences or providing information from the client through
the consultant to the attorney for the purpose of assisting the attorney in giving legal advice.”
AVX Corp., 2010 WL 4884903, at *10.
Overall, the evidence reflects that Dameron’s firm and Hartford Iron retained Keramida
and CH2M as environmental contractors for the primary purpose of providing environmental
consulting advice and services to Hartford Iron in designing and constructing a new stormwater
management system, not because Hartford Iron’s counsel needed them to “translate” information
into a useable form so that counsel could render legal advice. ECDC Envtl., L.C., 1998 WL
614478, at *8; see also In re Grand Jury Proceedings, 220 F.3d at 571. As such, Hartford Iron’s
communications with Keramida and CH2M fall outside the scope of the attorney-client privilege,
which is to be narrowly construed. See Hamdan, 2014 WL 2881551, at *2. Therefore, the Court
will move on to consider whether the emails are protected under the work-product doctrine.
III. THE WORK-PRODUCT DOCTRINE
A. Applicable Legal Standard
The work-product doctrine is a qualified privilege and is “distinct from and broader than
the attorney-client privilege.” Caremark, Inc. v. Affiliated Comput. Servs., Inc., 195 F.R.D. 610,
613 (N.D. Ill. 2000) (citing United States v. Nobles, 422 U.S. 225, 238 (1975)). “The workproduct doctrine protects documents prepared by attorneys in anticipation of litigation for the
purpose of analyzing and preparing a client’s case.” Sandra T.E. v. S. Berwyn Sch. Dist. 100,
600 F.3d 612, 618 (7th Cir. 2009) (citations omitted); see In re Special Sept. 1978 Grand Jury,
15
640 F.2d 49, 62 (7th Cir. 1980) (“[T]he work product doctrine may encompass any document
prepared in anticipation of litigation by or for the attorney.”). As with the attorney-client
privilege, “the party invoking the work product privilege bears the burden of establishing that the
privilege applies.” State Farm Fire & Cas. Co. v. Nokes, 263 F.R.D. 518, 523 (N.D. Ind. 2009)
(citation omitted).
A party claiming work-product protection must show that the materials sought are: “(1)
documents and tangible things; (2) prepared in anticipation of litigation or for trial; and (3) by or
for a party or by or for a party’s representative.” Boyer v. Gildea, 257 F.R.D. 488, 490 (N.D.
Ind. 2009) (citation omitted); see Binks Mfg. Co. v. Nat’l Presto Indus., Inc., 709 F.2d 1109,
1118 (7th Cir. 1983); Caremark, 195 F.R.D. at 613-14. “[M]aterials prepared in anticipation of
litigation by any representative of the client are protected, regardless of whether the
representative is acting for the lawyer.” Caremark, 195 F.R.D. at 615 (citation omitted); see also
Boyer, 257 F.R.D. at 490.
“While litigation need not be imminent, the primary motivating purpose behind the
creation of a document or investigative report must be to aid in possible future litigation.” Binks
Mfg. Co., 709 F.2d at 1119 (citation omitted); see also First Fin. Bank, N.A. v. Citibank, N.A.,
No. 1:11-cv-226, 2012 WL 626272, at *2 (S.D. Ind. Feb. 24, 2012). “[D]ocuments that are
created in the ordinary course of business or that would have been created irrespective of
litigation are not under the protection of the work product doctrine.” Caremark, 195 F.R.D. at
614 (citation omitted). Thus, “whether a document is protected depends on the motivation
behind its preparation, rather than on the person who prepares it.” Id. at 615. “[A] document is
not privileged if it was initially created with a dual purpose and the litigation purpose is not
16
primary . . . .” Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 190 F.R.D. 532, 537
(S.D. Ind. 1999) (citation and internal quotation marks omitted).
There are “differing levels of protection for fact and opinion work product.” Appleton
Papers, Inc. v. EPA, 702 F.3d 1018, 1024 (7th Cir. 2012) (citation omitted). “Fact work product
consists of factual material while opinion work product consists of the mental impressions,
conclusions, opinions, or legal theories of an attorney.” Nokes, 263 F.R.D. at 523 (citation
omitted). The work-product privilege can be overcome as to fact work product if the party
seeking the materials shows: (1) a substantial need for the materials, and (2) an inability to
obtain the substantial equivalent of the information without undue hardship. See Appleton
Papers, Inc., 702 F.3d at 1022 (citing Fed. R. Civ. P. 26(b)(3)(A)(ii)); Boyer, 257 F.R.D. at 49091; Caremark, 195 F.R.D. at 614. “But even when a litigant makes the substantial need
showing, ‘opinion’ work product remains protected.” Appleton Papers, Inc., 702 F.3d at 1023
(citing Fed. R. Civ. P. 26(b)(3)(B)); Caremark, 195 F.R.D. at 614 (“[T]he lawyer’s mental
processes are required to be protected from disclosure.”).
Having said that, “[a]lthough documents and tangibles created by the representative in
anticipation o[f] litigation are protected, the underlying facts may be subject to disclosure in
ordinary discovery if they are non-privileged.” Vardon Golf Co. v. Karsten Mfg. Corp., 213
F.R.D. 528, 534 (N.D. Ill. 2003) (citing Hickman v. Taylor, 329 U.S. 495, 513 (1947)). Thus,
“[t]he underlying facts contained in [opinion work product] are discoverable pursuant to ordinary
discovery process such as interrogatories, document requests and depositions.” Eagle
Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 479 (N.D. Ill. 2002).
“A majority of courts have held . . . that [once the work-product privilege attaches,] the
17
privilege endures after termination of the proceedings for which the documents were created,
especially if the old and new matters are related.” Hobley v. Burge, 433 F.3d 946, 949 (7th Cir.
2006) (citations omitted); see also Lawrence E. Jaffe Pension Plan v. Household Int’l, Inc., 237
F.R.D. 176, 182 (N.D. Ill. 2006).
B. The Work-Product Doctrine May Protect Hartford Iron’s
Communications With Keramida and CH2M
Hartford Iron claims that all of the withheld emails are protected by the work-product
doctrine because they were prepared for the purposes of litigation—that is, the IDEM and EPA
claims and this lawsuit between the parties. Valley Forge disagrees, asserting that the emails
were prepared for the primary purpose of completing environmental remediation at the Hartford
Iron site, rather than for litigation purposes.
Valley Forge’s attempted parsing of Hartford Iron’s environmental remediation efforts
from its litigation purposes is unpersuasive. The record suggests that the threat of litigation with
IDEM and the EPA “was the motivating factor which moved [Hartford Iron] to complete the
clean up of the [Hartford Iron] facility.” Bituminous Cas. Corp. v. Tonka Corp., 140 F.R.D. 381,
389 (D. Minn. 1992); see Graff, 2012 WL 5495514, at *4 (“If a document is prepared in
anticipation of litigation, the fact that it also serves an ordinary business purpose does not
deprive it of protection, but the burden is on the party claiming protection to show that
anticipated litigation was the driving force behind the preparation of each requested document.”
(citation and internal quotation marks omitted)). As such, the Court will not separate Hartford
Iron’s remediation efforts from the IDEM and EPA claims and this litigation.
In that regard, all of the emails with Keramida and CH2M were created after the parties
became aware of the IDEM and EPA claims and after this lawsuit was filed. See Bituminous
18
Cas. Corp., 140 F.R.D. at 389 (comparing In re LTV Sec. Litig., 89 F.R.D 595, 612 (N.D. Tex.
1981) (finding that documents prepared during an SEC investigation were work product), with
Rakus v. Erie-Lackawanna R.R. Co., 76 F.R.D. 145 (W.D.N.Y. 1977) (finding that accident
reports prepared as required by ICC regulations were generated in the normal course of
business)); see Graff, 2012 WL 5495514, at *27 (collecting cases and finding that the emails
were prepared not in the ordinary course of business, but rather, in response to a potential civil
action for alleged violations of a permit to install as set forth in the notice of violation from the
state environmental agency); ECDC Envtl., L.C., 1998 WL 614478, at *13-14 (collecting cases
that upheld a work-product objection as to communications of an environmental consultant
prepared in anticipation of litigation with the EPA or state environmental agency). As such, the
work-product doctrine may protect Hartford Iron’s communications with Keramida and CH2M.
Having said that, the fact that the communications were prepared in the midst of
litigation is not necessarily determinative, as the work-product privilege “requires causation in
the sense of the purpose or motivation for the creation of documents—i.e., the intended use to
which the documents were to be put—not causation in the sense of a ‘but for’ sequence of events
or influences.” Stout v. Ill. Farmers Ins. Co., 150 F.R.D. 594, 598 (S.D. Ind. 1993); see
Goodyear Tire & Rubber Co., 190 F.R.D. at 537 (“[T]he court must determine whether the
primary motivating purpose behind the creation of a document or investigate report [was] to aid
in possible future litigation.” (second alteration in original; citation and internal quotation marks
omitted)). “[E]ven if litigation is imminent, there is no work product immunity for documents
prepared in the ordinary course of business rather than for litigation purposes.” Coltec Indus.,
Inc. v. Am. Motorists Ins. Co., 197 F.R.D. 368, 371 (N.D. Ill. 2000); see also Binks Mfg. Co., 709
19
F.2d at 1118. The intent of the work-product doctrine is “to protect the adversarial process by
providing an environment of privacy in which a litigator may creatively develop strategies, legal
theories, and mental impressions outside the ordinary liberal realm of federal discovery
provisions, thereby insuring that the litigator’s opponent is unable to ride on the litigator’s wits.”
Coltec Indus., Inc., 197 F.R.D. at 371 (citation omitted).
Accordingly, some categories of documents generally fall outside the scope of the workproduct privilege. One example is mere transmittal communications. See Minter v. Liberty Mut.
Fire Ins. Co., No. 3:11CV-249-S, 2012 WL 2430471, at *3 (W.D. Ky. June 26, 2012) (rejecting
defendant’s claim of work-product privilege with respect to “mere transmittal letters that
contained no attorney impressions or strategy, but merely transmitted [documents] without any
substantive comment”); Smith ex rel. Smith v. United States, 193 F.R.D. 201, 214 (D. Del. 2000)
(“These are transmittal letters to which no work product privilege would attach.”); Am. Med.
Sys., Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, No. CIV.A. 98-1788, 1999 WL 970341, at
*4 (E.D. La. Oct. 22, 1999) (“Transmittal documents do not convey any confidential
communication and are therefore not privileged.”); ECDC Envtl., L.C., 1998 WL 614478, at *15
(excluding from work-product protection cover letters, fax transmittal pages, or letters
transmitting copies of documents without comment, all of which did not reveal any legal
analysis, research, or litigation strategy). Here, as concluded infra, many of the emails reviewed
in camera by the Court are mere transmittal communications, and thus, are not protected work
product.
Another category of documents outside the scope of the work-product doctrine are
communications dealing with merely administrative, logistical, or scheduling matters. See
20
Keaton v. Hannum, No. 1:12-cv-00641-SEB-MJD, 2013 WL 1818993, at *7 (S.D. Ind. Apr. 29,
2013) (stating that a discussion regarding the scheduling and rescheduling of a deposition was
not work product); MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 621
n.282 (S.D. Fla. July 16, 2013) (declining to afford work-product protection to emails
concerning administrative or scheduling matters); Pic Grp. v. LandCoast Insulation, Inc., No.
1:09-CV-662KS-MTP, 2010 WL 1741703, at *2 (S.D. Miss. Apr. 28, 2010) (finding that
communications relating “merely to logistical matters, such as scheduling meetings or
conference calls” were not work product); Leach v. Quality Health Servs., 162 F.R.D. 499, 502
(E.D. Pa. 1995) (“We find it unlikely that the billing records would be protected by the attorney
work product doctrine. . . . Billing records are commonly created in the regular course of
business, which removes them from this doctrine’s coverage.”); Stout, 150 F.R.D. at 598
(explaining that while requests and bills for litigation services were created because of the
anticipated litigation, they were not created for the purpose of preparing for litigation, and thus,
were not work-product protected). Here, as concluded infra, many of the emails reviewed in
camera by the Court merely pertain to administrative, logistical, or scheduling matters, and thus,
are not protected work product.
Ultimately, only a portion of the emails submitted for in camera review constitute
protected work product. The Court’s in camera ruling on the 185 emails or email threads is set
forth in the next two sections of this Opinion and Order.9
9
On its privilege log, Hartford Iron indicates that every email is also protected under the “joint defense”
privilege. (See DE 633-1; DE 633-2). Hartford Iron, however, makes no effort to elaborate in its privilege log or its
briefs about the applicable legal standard for the “joint defense” privilege or how it applies to any specific emails.
Presumably, in listing the “joint defense” privilege, Hartford Iron was referring to the common interest doctrine.
“Although occasionally termed a privilege itself, the common interest doctrine is really an exception to the
rule that no privilege attaches to communications between a client and an attorney in the presence of a third person.”
21
C. In Camera Ruling on the Keramida Documents
as to the Work-Product Doctrine
After an in camera review of the emails, the Court rules as follows with respect to
whether Hartford Iron’s emails or email threads with Keramida are protected by the workproduct doctrine:
Keramida Doc. No.
Protected Under the Work-Product Doctrine?
A1
Yes, as to Belcredi 4:43 email, which is factual information pertaining
to investigation/remediation. No, as to rest of thread, which pertains to
scheduling.
A2
Yes. Factual information pertaining to investigation/remediation.
A3
Yes, as to Belcredi 10:51 email, which is factual information
pertaining to investigation/remediation. No, as to rest of thread, which
pertains to scheduling.
A4
Yes, as to Belcredi 10:51 email, which is factual information
pertaining to investigation/remediation. No, as to rest of thread, which
pertains to scheduling.
United States v. BDO Seidman, LLP, 492 F.3d 806, 815 (7th Cir. 2007) (citation omitted); see McNally Tunneling
Corp. v. City of Evanston, No. 00 C 6979, 2001 WL 1246630, at *2 (N.D. Ill. Oct. 18, 2001) (“The common interest
doctrine is not an independent source of confidentiality. Rather, it simply extends the protection afforded by other
doctrines, such as the attorney/client privilege and the work product rule.” (citations omitted)). “For that reason, the
common interest doctrine only will apply where the parties undertake a joint effort with respect to a common legal
interest, and the doctrine is strictly limited to those communications made to further an ongoing enterprise.” BDO
Seidman, LLP, 492 F.3d at 815 (citing Evans, 113 F.3d at 1467); see BASF Aktiengesellschaft v. Reilly Indus., Inc.,
224 F.R.D. 438, 442 (S.D. Ind. 2004) (“To maintain the privilege, the common interest must be a legal interest, not
merely a business or financial interest.” (citation omitted)). “Of course, to assert the common interest doctrine as a
shield to production, the parties asserting it must first establish that the underlying documents or communications
withheld were otherwise privileged before the common interest arose.” Dexia Credit Local v. Rogan, 231 F.R.D.
268, 273-74 (N.D. Ill. 2004) (citation omitted).
Due to its failure to argue the common interest privilege with any specificity, Hartford Iron has failed to
carry its burden of establishing that any emails fall within the common interest doctrine. See Evans, 113 F.3d at
1461 (“The party seeking to invoke the privilege bears the burden of proving all of its essential elements.” (citation
omitted)). In any event, with the exception of perhaps responding to a subpoena served by Valley Forge on the
environmental contractors, Keramida and CH2M do not have a common legal interest with Hartford Iron, as
Keramida and CH2M are not parties to this lawsuit. As explained above, simply having a business or financial
interest is insufficient to invoke the privilege. Therefore, the Court need not further address Hartford Iron’s claim of
a “joint defense” privilege.
22
A5
Yes, as to Dameron 5:03 email, which is factual information pertaining
to investigation/remediation. No, as to rest of thread, which pertains to
scheduling.
A6
Yes, as to Dameron 8:16 and 11:22 emails, which include attorney
thought processes pertaining to investigation/remediation. Moot, as to
the Dameron 2:35 email that was disclosed in B9 and B14.
A7
Yes. Factual information and attorney thought processes regarding
investigation/remediation.
A8
Yes. Factual information regarding investigation/remediation.
A9
Moot as to Dameron 9:59 email that was already disclosed in B14.
No, as to rest of thread, which is transmittal and scheduling emails.
A10
Moot. Already disclosed in B9.
A11
No. Transmittal email.
A12
Yes, as to Belcredi 11:11 email, which is comments on draft
communication regarding investigation/remediation. No, as to rest of
thread, which is transmittal emails.
A13
No. Email thread pertains to scheduling.
A14
Yes. Factual information pertaining to remediation.
A15
Yes. Factual information pertaining to remediation.
A16
No. Transmittal email.
A17
Moot. Already disclosed in B25.
A18
No. Email pertains to scheduling/administrative/invoicing. Similar
emails concerning billing/invoicing were already disclosed in B4-B8,
B10, B24, B45, B49, and B55.
A19
Yes, as to Dameron 4:18, 4:04, and 3:59 emails, which is factual
information pertaining to investigation/remediation. No, as to rest of
thread, which is a transmittal email and a forwarded August Mack
email.
A20
Moot. Already disclosed in B28.
A21
No. Email pertains to scheduling.
A22
No. Email pertains to scheduling.
A23
No. Email pertains to scheduling.
23
A24
Yes, as to Belcredi 9:57 email, which is factual information pertaining
to investigation/remediation. No, as to rest of thread, which pertains to
scheduling.
A25
No. Transmittal email.
A26
No. Transmittal email.
A27
No. Transmittal emails.
A28
No. Transmittal emails.
A29
No. Transmittal emails.
A30
No. Transmittal emails.
A31
No. Email pertains to scheduling.
A32
No. Transmittal email.
A33
No. Transmittal email.
A34
No. Email pertains to scheduling.
A35
No. Transmittal email.
A36
No. Email pertains to administrative/invoicing.
A37
No. Transmittal email.
A38
Yes. Reveals attorney thought processes pertaining to
investigation/remediation.
A39
Yes, as to Shere 8:29 and Belcredi 4:38 emails, which reveal factual
information pertaining to remediation. No, as to rest of thread, which
pertains to scheduling.
A40
Yes, as to Shere 11:50 email, which reveals attorney comments on
draft correspondence. Yes, as to Shere 8:29 and Belcredi 4:38 emails,
which reveal factual information pertaining to remediation. No, as to
rest of thread, which pertains to administrative/scheduling.
A41
No. Transmittal email.
A42
Yes, as to Shere 12:03 email, which reveals attorney thought
processes. No, as to rest of thread, which pertains to administrative
matters or was already disclosed in B36.
A43
Yes. Reveals attorney thought processes pertaining to remediation.
A44
No. Email pertaining to scheduling.
24
A45
Yes, as to Shere 11:22, 11:23, and 10:58 emails, which reveal attorney
thought processes on draft correspondence. Yes, as to Belcredi 11:31
email, which is factual information pertaining to remediation. No, as
to rest of thread, which includes forwarded Valley Forge emails,
administrative/invoicing issues, and transmittal emails.
A46
Yes, as to Shere 11:08 and 12:37 emails, which reveal attorney thought
processes on draft correspondence. No, as to rest of thread, which is
transmittal emails or pertains to administrative/invoicing.
A47
Yes, as to Shere 12:58 email, which reveals draft correspondence by
attorney. Moot, as to rest of thread, which was already disclosed in
B42.
A48
No. Pertains to scheduling. Also moot, as forwards email that was
already disclosed in B43-B44.
A49
Yes. Reveals attorney thought processes on draft correspondence.
A50
Yes, as to Shere 9:00, 4:20, and 3:56 emails, which reveal attorney
thought processes. No as to rest of thread, which was exchanged with
Valley Forge or pertains to administrative/invoicing.
A51
Yes, as to Dameron 12:33 and 12:34 emails, which reveal legal
strategy as to remediation and payment terms. No, as to rest of thread,
which was sent to IDEM or is transmittal email.
A52
Yes, as to Shere 12:16 email, which reveals legal strategy as to
remediation and payment terms. No, as to rest of thread, which is
transmittal email.
A53
No. Transmittal email.
A54
No, as to Shere 5:34 and 11:19 emails, which are transmittal emails.
Yes, as to Belcredi 4:28 email, which contains draft correspondence.
A55
No. Transmittal email.
A56
Yes, as to Shere 6:23, 11:16, and 6:47 emails, which reveal attorney
comments on draft correspondence. Yes, as to Belcredi 3:29, 11:03,
and 3:04 emails, which is factual information pertaining to
remediation. No, as to rest of thread, which forwards Valley Forge or
IDEM emails or are transmittal emails.
A57
No. Transmittal emails and forwards IDEM email.
25
A58
Yes, as to Shere 10:48 email, which reveals attorney thought processes
and legal strategy pertaining to remediation. Yes, as to Belcredi 7:28
email, which contains factual information pertaining to remediation.
A59
No. Transmittal emails and forwards email with IDEM or waste
management.
A60
Yes, as to Shere 12:31 email, which reveals attorney mental
impressions. No, as to rest of thread, which is transmittal emails and
forwarded email with EPA. Moot, as to portion of thread that was
already disclosed in B53-54.
A61
No. Transmittal, administrative, and scheduling emails.
A62
Yes, as to Strahl 2:55 email, which reveals legal strategy. No, as to
rest of thread, which pertains to scheduling.
A63
Yes, as to Strahl 2:55 email, which reveals legal strategy. No, as to
rest of thread, which pertains to scheduling.
A64
No. Transmittal email.
A65
No. Pertains to administrative/scheduling.
A66
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A67
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A68
Yes. Factual information pertaining to remediation.
A69
No. Pertains to scheduling.
A70
No. Pertains to scheduling.
A71
No. Transmittal and scheduling email. Forwards Valley Forge emails.
A72
No. Transmittal and scheduling email. Forwards Valley Forge email.
A73
No. Transmittal email and forwards August Mack email.
A74
Yes, as to Shere 10:49 email, which reveals attorney mental
impressions. No, as to rest of thread, which is transmittal email and
forwards Valley Forge email.
A75
No. Transmittal emails and forwards August Mack email.
26
A76
No. Transmittal email.
A77
No. Does not pertain to legal assistance.
A78
Yes. Factual information pertaining to investigation/remediation.
A79
See A147.
A80
See A148.
A81
No. Transmittal and scheduling emails.
A82
No. Does not pertain to legal assistance.
A83
No. Email pertains to scheduling.
A84
No. Transmittal email.
A85
No. Transmittal email.
A86
No. Emails pertain to scheduling. Forwards IDEM email.
A87
No. Transmittal email. Forwards invoices. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A88
No. Emails pertain to scheduling and forward August Mack email.
A89
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A90
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A91
Yes, seeks legal advice regarding billing/invoicing.
A92
Yes, as to Shere 9:28 email, which is factual information pertaining to
investigation/remediation. No, as to the rest of the thread, which is
forwarded IDEM emails.
A93
Yes, as to Shere 9:34 email, which is factual information pertaining to
remediation. No, as to rest of thread, which pertains to scheduling.
A94
Yes, as to Shere 9:34 email, which is factual information pertaining to
remediation. No, as to rest of thread, which pertains to scheduling and
transmittal emails.
27
A95
No. Email with IDEM. Moot, as to portion of thread that was already
disclosed in B64.
A96
No. Email pertains to scheduling.
A97
No. Email pertains to scheduling.
A98
Yes, as to Shere 9:42 email, which reveals attorney mental
impressions. No, as to rest of thread.
A99
Yes. Factual information pertaining to remediation.
A100
No. Transmittal email.
A101
Yes. Reveals attorney thought processes and draft affidavit.
A102
No. Transmittal email. Forwards Valley Forge documents.
A103
No. Emails pertain to scheduling.
A104
No. Transmittal email.
A105
No. Emails pertain to scheduling.
A106
No. Transmittal and scheduling emails.
A107
No. Transmittal and scheduling emails.
A108
No. Transmittal and scheduling emails.
A109
Yes, as to Belcredi 3:33 email, which is factual information pertaining
to investigation/remediation. No, as to rest of thread, which are
transmittal emails or forwards August Mack/IDEM emails.
A110
Yes. Factual information pertaining to remediation.
A111
No. Emails pertain to scheduling and forwards emails exchanged with
IDEM.
A112
No. Transmittal email. Forwards emails exchanged with EPA.
A113
No. Transmittal email. Forwards information exchanged with IDEM.
A114
No. Transmittal email. Forwards information exchanged with IDEM.
A115
Yes, as to Shere 9:41 email, which reveals attorney comments on draft
correspondence. No, as to rest of thread, which is transmittal email.
A116
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55. Forwards brief that was filed with Court.
28
A117
No. Pertains to administrative matters.
A118
Yes, as to Belcredi 11:11 email, which reveals factual information
pertaining to remediation. No, as to rest of thread, which is transmittal
email.
A119
Yes, as to Shere 9:42 email, which reveals attorney thought processes
on remediation. Yes, as to Belcredi 11:11 email, which is factual
information pertaining to remediation. No, as to rest of thread, which
is transmittal emails.
A120
No. Transmittal emails.
A121
No. Transmittal emails.
A122
No. Emails pertain to administrative/scheduling.
A123
Yes, as to Belcredi 12:36 email, which is factual information
pertaining to remediation. No, as to rest of thread, which is transmittal
email.
A124
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A125
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A126
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A127
No. Email pertains to scheduling.
A128
Yes, as to last sentence of Shere 1:16 email, which reveals attorney
mental impressions. No, as to rest of Shere email and forwarded
email.
A129
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A130
Yes. Reveals attorney thought processes and legal strategy regarding
subpoenas.
29
A131
No, as to Shere 8:23 email, which is a transmittal email. Yes, as to
Shere 10:36 email, which reveals attorney thought processes and legal
strategy regarding subpoenas.
A132
No. Email pertains to scheduling.
A133
Yes, as to Shere 5:25 email, which contains attorney mental
impressions regarding remediation. No, as to rest of thread, which
forwards Valley Forge email.
A134
Yes, as to Shere 5:25 email, which reveals attorney mental impressions
regarding remediation. No, as to rest of thread, which forwards Valley
Forge email.
A135
No. Transmittal email.
A136
Yes, as to Shere 5:25 email, which reveals attorney mental impressions
regarding remediation. No, as to rest of thread, which is transmittal
emails.
A137
No. Transmittal emails.
A138
No. Transmittal emails.
A139
No. Email pertains to scheduling.
A140
No. Transmittal email and pertains to administrative/invoicing.
Similar emails concerning billing/invoicing were already disclosed in
B4-B8, B10, B24, B45, B49, and B55.
A141
No. Transmittal email and pertains to administrative/invoicing.
Similar emails concerning billing/invoicing were already disclosed in
B4-B8, B10, B24, B45, B49, and B55.
A142
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55.
A143
No. Transmittal emails.
A144
No. Transmittal emails.
A145
No. Transmittal email.
A146
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, and B55. Forwards Valley Forge emails.
30
A147
Yes, as to Dameron 10:15 email, which reveals factual information and
attorney mental impressions regarding remediation. No, as to rest of
thread, which is transmittal email.
A148
Yes, as to Dameron 11:15 email, which reveals factual information and
attorney mental impressions regarding remediation. No, as to rest of
thread, which is transmittal email.
A149
No. Pertains to administrative/invoicing. Similar emails concerning
billing/invoicing were already disclosed in B4-B8, B10, B24, B45,
B49, B55. Forwards email exchanged with third parties.
A150
Yes. Dameron 3:48 and 11:15 emails reveal attorney mental
impressions regarding investigation/remediation. Belcredi 2:35 email
reveals factual information regarding investigation/remediation.
D. In Camera Ruling on the CH2M Documents
as to the Work-Product Doctrine
After an in camera review of the emails, the Court rules as follows with respect to
whether Hartford Iron’s emails or email threads with CH2M are protected by the work-product
doctrine:
CH2M Doc. No.
Protected Under the Work-Product Doctrine?
A1
No. Transmittal letter. Similar information regarding subpoena
already disclosed in B4 and B6-B8.
A2
No. Scheduling email. Similar information regarding subpoena
already disclosed in B4 and B6-B8.
A3
No. Pertains to administrative/invoicing. Similar information
regarding invoices and payments already disclosed in B3, B12-B16,
and B23-B24.
A4
Yes, as to Shere 2:41 email, which reveals attorney thought processes
pertaining to draft motion. No, as to rest of thread, which is transmittal
letter.
A5
No. Transmittal letter. Similar information regarding invoices and
payments already disclosed in B3, B12-B16, and B23-B24.
31
A6
No. Transmittal letter.
A7
Moot. Already disclosed in B11.
A8
No. Pertains to administrative/scheduling. Forwards Valley Forge
email. Similar information already disclosed regarding Coyle in B12.
A9
Yes, as to Shere 1:14 email, which reveals attorney mental
impressions. No, as to rest of thread.
A10
No. Transmittal letter forwarding email that was sent to Valley Forge.
Similar information regarding invoices and payments already disclosed
in B3, B12-B16, and B23-B24.
A11
Yes, as to Weber 2:15 email, which includes CH2M draft response to
correspondence. No, as to forwarded Valley Forge email.
A12
Yes, as to last sentence of Shere 2:33 email, which reveals attorney
mental impressions. No, as to rest of thread, which is transmittal or
forwarded Valley Forge emails.
A13
No, pertains to administrative/invoicing. Similar information
regarding invoices and payments already disclosed in B3, B12-B16,
and B23-B24.
A14
No. Transmittal letter. Moot, as to forwarded email already disclosed
in B17-B19.
A15
Yes, as to Andrae 9:58 email, which contains factual information
pertaining to remediation. No, as to Weber 10:15 email, which
pertains to scheduling. Moot, as to rest of thread, which was already
disclosed in B20-B21.
A16
Yes, as to Andrae 9:58 email, which contains factual information
pertaining to remediation. Moot, as to the rest of the thread, which
was already disclosed in B20-B21.
A17
Yes. Factual information pertaining to remediation.
A18
No. Scheduling email.
A19
Yes. Factual information pertaining to remediation.
A20
No. Scheduling and transmittal emails.
A20.5
A21
Moot. Was disclosed in B29.
Yes, as to Shere 9:38 email, which is factual information pertaining to
remediation.
32
A22
No, as to Dameron 1:40 email, which is transmittal email. Yes, as to
diagram.
A23
Yes. Factual information pertaining to remediation.
A24
Yes, as to Dameron 3:56 and 3:48 emails, which reveal factual
information and attorney mental impressions.
A25
No. Email pertains to scheduling.
A26
No. Transmittal email.
A27
Yes. Contains attorney thought processes.
A28
Yes, as to Dameron 1:45 email, which reveals attorney mental
impressions or legal strategy. Yes, as to Schwan 10:32 email, which is
factual information pertaining to remediation.
A29
No. Transmittal emails. Forwards August Mack emails.
A30
Yes, as to Dameron 3:30 email, which reveals attorney thought
processes. No, as to rest of thread, which is transmittal and scheduling
emails.
A31
No. Emails pertain to scheduling.
A32
No. Email pertains to scheduling.
A33
No. Transmittal and scheduling emails.
A34
No. Transmittal and scheduling emails.
A35
No. Transmittal and scheduling emails.
A36
Yes. Reveals attorney thought processes regarding remediation.
As a final note, as explained earlier, fact work product may be discoverable if the party
seeking the materials shows: (1) a substantial need for the materials, and (2) an inability to
obtain the substantial equivalent of the information without undue hardship. See Appleton
Papers, Inc., 702 F.3d at 1022 (citations omitted); Boyer, 257 F.R.D. at 490-91; Caremark, 195
F.R.D. at 614. While Valley Forge has briefly alluded to a substantial need to discover the fact
work product and an inability to obtain the information (see DE 479 at 12), Valley Forge’s
33
arguments on that front have not been developed, and thus, the Court will not address Valley
Forge’s undeveloped assertion at this juncture.
IV. CONCLUSION
After an in camera review, the Court CONCLUDES that Hartford Iron’s communications
with environmental contractors Keramida and CH2M are not protected by the attorney-client
privilege, but are, in part, protected by the work-product doctrine. Hartford Iron is ORDERED
to produce the non-privileged documents to Valley Forge on or before April 28, 2017. The
parties are ORDERED to meet and confer in good faith—applying the legal standards and
conclusions articulated herein—to resolve any disputes pertaining to the attachments that may
remain after the entry of this Opinion and Order.
SO ORDERED.
Entered this 14th day of April 2017.
/s/ Susan Collins
Susan Collins,
United States Magistrate Judge
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