Kitchin et al v. Bridgeton Landfill, LLC

Filing 133

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that attorney James F. Clayborne, Jr. and Clayborne & Wagner, LLPs motion for leave to file, under seal, James F. Clayborne, Jr.s supplemental declaration [ 127 ] is GRANTED. IT IS FURTHER ORDERED that d efendants Bridgeton Landfill, LLC and Republic Services, Inc.s Motion for In Camera Review in Connection with Motion to Disqualify [ 131 ] is GRANTED. IT IS FURTHER ORDERED that defendants Bridgeton Landfill, LLC and Republic Services, Inc., shall pr oduce to the Court for in camera review the privileged documents and communications shared with attorney James F. Clayborne, Jr. during his prior representation of defendants in 2013. Copies of these documents and communications must be delivered to my chambers no later than 4:30 p.m. on Tuesday, August 30, 2022. They shall not be filed electronically or otherwise in the Court file, but defendants must file a statement indicating that the documents and communications have been provided to chambers as required by this Order. Signed by District Judge Catherine D. Perry on 8/23/2022. (NEP)

Case: 4:18-cv-00672-CDP Doc. #: 133 Filed: 08/23/22 Page: 1 of 3 PageID #: 1571

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOHN C. KITCHIN, JR., et al.,
on behalf of themselves and all others
similarly situated,

)
)
)
)
Plaintiffs,
)
)
v.
)
)
BRIDGETON LANDFILL, LLC,
)
et al.,
)
)
Defendants;
)
_________________________________ )
)
BRIDGETON LANDFILL, LLC,
)
)
Third-Party Plaintiff,
)
)
v.
)
)
COTTER CORPORATION, N.S.L.,
)
)
Third-Party Defendant.
)

No. 4:18 CV 672 CDP

MEMORANDUM AND ORDER
This matter is before the Court on defendants Bridgeton Landfill, LLC and
Republic Services, Inc.’s motion to disqualify attorney James F. Clayborne, Jr. and
his law firm of Clayborne & Wagner, LLP, in their representation of plaintiffs in
this action. The motion to disqualify arises from Clayborne’s representation of
defendants in 2013 wherein he acted as a liaison between defendants and a water
treatment facility in Illinois, the Illinois Environmental Protection Agency, and the

Case: 4:18-cv-00672-CDP Doc. #: 133 Filed: 08/23/22 Page: 2 of 3 PageID #: 1572

City of Sauget, Illinois, to set up negotiations relating to defendants’ desired
resumption of its business relationship with the water treatment facility. The
facility had earlier ceased accepting leachate discharge from the Bridgeton Landfill
because of alleged excessive hazardous waste contained therein.
After the motion to disqualify was fully briefed, Clayborne and his law firm
sought to file, under seal, Clayborne’s supplemental declaration to further support
their opposition to the motion. Defendants have not objected to the filing of this
supplemental declaration or to its filing under seal. I will therefore grant leave to
file the supplemental declaration and will permit its filing under seal.
Clayborne disputes defendants’ assertion that his representation of them in
2013 involved a matter substantially related to this litigation. Defendants request
that I review certain privileged documents in camera to assist in this determination.
Because Clayborne appears to agree that additional information about his 2013
representation is required for me to conduct a proper analysis in determining the
motion to disqualify (see ECF 115-1 at p. 7); and because he disputes defendants’
factual averments regarding the extent of his prior representation, can neither
confirm nor deny what documents he received during his prior representation, and
cannot recall the extent to which he reviewed such documents, I will order
defendants to submit to the Court for in camera review the relevant privileged
documents and communications shared with Clayborne during his prior
representation.
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Case: 4:18-cv-00672-CDP Doc. #: 133 Filed: 08/23/22 Page: 3 of 3 PageID #: 1573

Accordingly,
IT IS HEREBY ORDERED that attorney James F. Clayborne, Jr. and
Clayborne & Wagner, LLP’s motion for leave to file, under seal, James F.
Clayborne, Jr.s’ supplemental declaration [127] is GRANTED.
IT IS FURTHER ORDERED that defendants Bridgeton Landfill, LLC and
Republic Services, Inc.’s Motion for In Camera Review in Connection with
Motion to Disqualify [131] is GRANTED.
IT IS FURTHER ORDERED that defendants Bridgeton Landfill, LLC and
Republic Services, Inc., shall produce to the Court for in camera review the
privileged documents and communications shared with attorney James F.
Clayborne, Jr. during his prior representation of defendants in 2013. Copies of
these documents and communications must be delivered to my chambers no later
than 4:30 p.m. on Tuesday, August 30, 2022. They shall not be filed –
electronically or otherwise – in the Court file, but defendants must file a statement
indicating that the documents and communications have been provided to
chambers as required by this Order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 23rd day of August, 2022.
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