United States of America v. Acquest Transit LLC
Filing
244
DECISION AND ORDER granting in part and denying in part 232 Motion to Compel. Signed by Hon. Leslie G. Foschio on 2/21/2017. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
UNITED STATES OF AMERICA,
Plaintiff,
DECISION
and
ORDER
v.
ACQUEST TRANSIT LLC,
ACQUEST DEVELOPMENT, LLC,
MR. WILLIAM L. HUNTRESS,
09-CV-55S(F)
Defendants.
________________________________________
APPEARANCES:
JEFF SESSIONS
UNITED STATES ATTORNEY GENERAL
Attorney for Plaintiff
BRADLEY L. LEVINE, SCOTT BAUER,
MEGHAN GREENFIELD, and
ELIZABETH YU, Trial Attorneys
Environmental and Natural Resources Division
U.S. Department of Justice
601 D Street, NW
Washington, DC 20530-0001
SNELL & WILMER, LLP
Attorneys for Defendants
BRADLEY R. CAHOON, of Counsel
15 W. South Temple, Suite 1200
Salt Lake City, Utah 84101
RUPP BAASE PFALZGRAF CUNNINGHAM LLC
Attorneys for Defendants
MATTHEW D. MILLER,
ROBERT SINGER, of Counsel
424 Main Street, Suite 1600
Buffalo, New York 14202
JURISDICTION
This matter, in which Plaintiff alleges violations of the Clean Water Act, was
referred to the undersigned by Hon. William M. Skretny by Order filed April 6, 2010 (Dkt.
1
44) for all pretrial matters. It is presently before the court on Defendants’ motion to
compel and for an expedited hearing filed October 14, 2016 (Dkt. 232).
BACKGROUND
On October 14, 2016, Defendants filed Defendants’ Notice of Motion To Compel
(Dkt. 232) together with the Attorney Declaration of Matthew D. Miller, Esq. (Dkt. 232-1)
(“Miller Declaration”) attaching Exhibits 1-11 (“Exh(s). __ to Miller Declaration”), and
Defendants’ Notice of Motion For Expedited Ruling On Defendants’ Motion To Compel
(Dkt. 233), and the Attorney Declaration of Matthew D. Miller, Esq. (“Miller Declaration
II”) attaching Exhibits 1 (Dkt. 233-1) and 2 (Dkt. 233-2) (“Exhs. __ to Miller Declaration
II”). Also on October 14, 2016, Defendants filed Memorandum of Law In Support Of
Defendants’ Motion To Compel Discovery (Dkt. 232-3) (“Defendants’ Memorandum”).
On November 14, 2015, Plaintiff filed United States’ Memorandum In Opposition To
Motion To Compel (Dkt. 239) (“Plaintiff’s Memorandum”) together with Exhibits 1-6 (Dkt.
239-1-6) (“Exh(s). __ to Plaintiff’s Memorandum”). In a telephone conference call with
the parties on October 17, 2016 (see Dkt. 235), the parties agreed to postpone the
deposition of Mary Anne Thiesing, a United States environmental expert, scheduled for
October 27, 2016 in Seattle, and David Pohle, an Environmental Scientist with the
United States Environmental Protection Agency (“EPA”), then scheduled for November
10, 2016, in New York City, pending the outcome of Defendants’ motion. On
December 2, 2016, Defendants filed Reply Memorandum In Further Support Of
Defendants’ Motion To Compel Discovery (Dkt. 240) (“Defendants’ Reply”). Oral
argument was deemed unnecessary.
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FACTS1
The property, located at 10880 Transit Road, Town of Amherst, New York
(“Amherst”), which is the subject of the instant action to enforce the Clean Water Act, 33
U.S.C. § 1251, et seq. (“Clean Water Act” or “the Act”), is a 96.6 acre parcel of
undeveloped land purchased by Defendant Acquest Transit, LLC (“Acquest”) in January
2006 (“the property”). A consultant hired by Acquest determined that 44 acres of the
property contained wetlands. The Acquest purchase price included a substantial
discount to account for the presence of protected wetlands on the property. Defendant
Huntress is an officer of Acquest and its principal owner. Acquest had earlier acquired
a small parcel of undeveloped land, also in Amherst, located at 2190 and 2220 Wehrle
Drive which is also the subject of a Clean Water Act action by Plaintiff in this court (“the
Wehrle Drive property”) (United States of America v. Acquest Wehrle, LLC, 09-CV637V(F)). At some point, prior to commencement of the instant action, the Army Corps
of Engineers (“the Corps”) and the United States Environmental Agency (“EPA”)
(together “the agencies”) began to investigate development activity at the Wehrle Drive
property for which no permits required under the Act had been issued. In late October
2006, Acquest obtained a permit from the New York State Department of Environmental
Conservation (“the DEC”) to allow for storm water discharges in connection with a
planned development of a commercial nursery to be constructed by Defendants and
completed August 1, 2007, on approximately four acres of the property at its northeast
1
Taken from the pleadings and papers filed in this action and in the related criminal action against
Defendants. See Liberty Mutual Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1389 (2d Cir.
1992) (taking judicial notice of indictment but expressing no opinion as to whether the indicted were guilty
or innocent of the charges).
3
corner facing Transit Road, a major north-south thorough fare. The permit was issued
by the DEC pursuant to the Act, specifically 33 U.S.C. § 1251(b), which authorizes a
state to issue permits for discharges of pollutants, including storm water runoff
otherwise prohibited by Section 402 of the Act, 33 U.S.C. § 1341 (“the October 2006
Section 402 permit”). In April 2007, a Corps employee observed earthmoving activities,
including construction of a long gravel access road, on the western side of the property
in an area adjacent to Millersport Highway, a heavily travelled road running parallel to
the property, in a north-west-south easterly direction, on its northern (north-west)
boundary line of the property, then believed by the Corps to constitute wetlands and
waters of the United States, and a nearby sign on the property stating “Clean Fill
Wanted” a considerable distance from and well outside the construction area for the
nursery, construction of which was the subject of the October 2006 § 402 permit. In
August 2007, the EPA conducted an inspection of the nursery site to determine
compliance with the October 2006 § 402 permit which revealed several instances of
non-compliance (“the August 2007 Inspection”). During the August 2007 Inspection, an
Acquest representative informed the EPA inspector that other than in connection with
Defendants’ development of the nursery no earthmoving activity had occurred in any
other area of the property which, according to the representative, was then being used
for farming, and which the EPA was later informed by Acquest involved growing corn.
Despite Acquest’s representations and assurances, the EPA requested on October 2,
2007, Acquest’s permission to enter the property to further investigate the matter
particularly the observed construction activity in the western portion of the property,
including building of the access road, which measured 24 feet wide and 1500 feet long,
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and the trucks dumping and spreading loads of fill on that area of the property. During
this period the agencies learned Acquest had, through various contractors, hydro-axed
brush and small trees on the property, created small ditches sidecasting excavated
material into wetland areas on the property, dumped hundreds of truckloads of fill on the
property, and bulldozed and graded the fill. On October 10, 2007, Acquest through its
attorney, refused the EPA’s request.
One week later, on October 17, 2007, Acquest applied for and received from the
DEC a second § 402 permit covering storm water discharges relating to construction
activity on four acres of vacant brush land adjacent to the nursery site to create useable
drain paths from field space because, as stated by Acquest, such construction related
storm water runoff could discharge into the local Tonawanda Creek but also stating that
the runoff nevertheless does not enter any roadside drain, swales, ditches or culverts.
On October 26, 2007, the EPA issued to Acquest a request, pursuant to § 308 of the
Act, 33 U.S.C. § 1318(a), which authorizes the EPA to obtain information as an aid in
determining whether a person has violated any effluent limitation (“the October 2007 §
308 Request”), seeking information, inter alia, regarding construction and earth-moving
activity on the property. Acquest’s response to the October 2007 § 308 Request on
November 27, 2007, was limited to asserting that portions of the western side of the
property were then under lease to a local farmer for growing corn, that the road
observed by the Corps was a farm road incident to such agricultural activity, and that
the nursery remained under construction, but otherwise failed to respond to the October
2007 § 308 Request regarding the nature and dimensions of the property, details as to
the observed earth-moving or construction activities, and the identity of persons
5
involved in these activities. On December 12, 2007, EPA directed a second § 308
Request (“the December 2007 § 308 Request”) to Defendants requesting evidence of
correction of deficiencies the EPA had noted in the August 2007 Inspection, and, based
on the apparent inconsistency between Acquest’s representation that other than the
nursery project, no construction activity was taking place on the property, and the
Corps’ observations of such activity despite Acquest’s assurances to the contrary, also
requested Defendants to fully explain such observed activity and any resulting storm
water discharges. On December 27, 2007, EPA obtained low-level aerial photographs
of the property taken earlier that year purporting to show on-going earth-moving activity
on the property by mechanized earth-moving equipment, filling of forested wet-land
areas on the property, and construction of the gravel road into the property from
Millersport Highway larger than would be reasonably necessary to support any farming
activity on the property and a substantial distance from the area devoted to the nursery.
On January 9, 2008, the EPA issued a third § 308 Request (“the January 9, 2008 § 308
Request”), repeating its requests issued in the October 2007 § 308 Request, then
unanswered by Defendants, and requested information to support Defendants’
representation that some part of the property was used to grow corn and a description
of any dredging or filling activity on the property. On the same date, staff of the Corps
observed further earth-moving activity on the Millersport Highway side of the property,
including the filling, grading, and excavation or widening of a ditch, and that the soil and
trees in that area of the property were consistent with the existence of wetlands.
Acquest responded to the December 2007 § 308 Request on January 25, 2008,
asserting, without documentation, it had remedied the deficiencies noted by the EPA by
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the August 6, 2007 inspection, failed to produce as required a Storm Water Pollution
Prevention Plan (“SWPP”), but again asserted that other activity on the property was
limited to agriculture, not construction. On February 8, 2008, Acquest responded to the
January 9, 2008 § 308 Request stating the property, except for the nursery, was then
leased to a business, a dairy farm, was being used for agriculture, i.e., growing corn,
and that the EPA lacked jurisdiction under the Act over the property.
On February 21, 2008, the EPA issued, pursuant to Section 309 of the Act, 33
U.S.C. § 1319(a), an order to Acquest directing Acquest to cease and desist all earthmoving activity on the property unless authorized by the Corps or obtaining a
determination by the EPA that the property does not contain wetlands subject to the Act.
The EPA issued another § 308 request for Acquest on February 26, 2008 (“February
26, 2008 § 308 Request”) directing Acquest to provide information it had failed to
provide in response to the December 2008 § 308 Request specifically, evidence of
Acquest’s compliance with the § 402 construction storm water permit, documentation
with regard to unauthorized construction and earthmoving activities on the property
which had been requested by the January 9, 2008 § 308 Request but not provided by
Acquest, and a full explanation of all activity on the property other than necessary
construction in connection with the nursery. Acquest responded to the February 26,
2008 § 308 Request on March 14, 2008 and provided Acquest’s SWPPPs stating that it
had complied fully with the inspection deficiency report and reiterated that the rest of the
property was devoted only to agriculture activity, admitted it had constructed a 24’ x
1500’ stone road on the property but failed to provide ownership or lessor identification
for the western portion of the property as had been requested by the EPA.
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The EPA then conducted roadside inspections of the property on June 9 and 10,
2008, observing fill and sidecast dredged material on wetland areas on the property, the
large gravel road entering the property from Millersport Highway identified by a sign
stating the road was for deliveries to the nursery, and water runoff from the property to
Tonawanda Creek, a navigable waterway, from the point where such runoff flows
through Black Creek into Ransom Creek located on the western side of Millersport
Highway through a connecting ditch adjacent to the property and culverts under the
highway. On July 28, 2008, the EPA obtained an administrative search from Hon. Hugh
B. Scott of this court and conducted a comprehensive inspection of the property on July
29-31, 2008 (“the July 2008 Inspection”). The result of the July 2008 Inspection
confirmed the presence of wetlands over the entire property, consistent with Acquest’s
consultant’s earlier determination and findings in 2005, based on the presence of
wetland vegetation hydric soils, and wetlands hydrology. The inspection also confirmed
the EPA’s observation of the water flow from the property into Tonawanda Creek
through the adjacent ditch, culverts, Black Creek, and Ransom Creek. The inspection
further revealed large discharges of dredged and fill material into wetlands on the
property which was used as fill material over 9.6 acres of the property plus an additional
2.6 acres of fill used as a pad for construction of the nursery, as well as smaller
amounts of fill that had been discharged into a wetlands area immediately to the west of
the nursery site, totaling over 13 acres of wetlands on the property into which fill had
been discharged. Upon completion of the inspection, an Acquest representative
informed the EPA the discharges would continue.
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Based on these findings, the EPA determined that Acquest failed to obtain a §
402 permit for storm water discharges resulting from Acquest’s construction activities on
the property, specifically, the clearing, grading or excavation on one or more acres on
the western side, i.e., some distance away from the nursery, of the property.
Additionally, the EPA determined that Acquest had caused the discharge of dredged or
fill material into wetlands on the property without obtaining from the Corps a permit as
required by Section 404 of the Act, 33 U.S.C. § 1344 (“a § 404 permit”). As a result of
Acquest’s activities with respect to the property as described above, the EPA
determined Acquest was in violation of Section 301 of the Act, 33 U.S.C. § 1311, for its
unauthorized and unlawful discharge of construction related storm water into waters of
the United States, specifically Tonawanda Creek, through smaller tributary creeks, and
the unauthorized discharged of pollutants of earthen fill and dredged material into
waters of the United States in violation of Section 404 of the Act, 33 U.S.C. § 1344.
On September 5, 2008, the EPA issued to Acquest a Cease and Desist Order,
pursuant to 33 U.S.C. § 1319(a), in which the EPA recited the aforementioned factual
background and, after noting the seriousness of Acquest’s violations and lack of good
faith efforts by Acquest to comply with the EPA’s directions, directed Acquest to cease
and desist from “all earth-moving work using mechanized earth-moving equipment in
any portion of the property.” Dkt. 9 at ¶ 19, Exh. 6 (“the September 5, 2008 Cease and
Desist Order”). The instant action was subsequently commenced by Plaintiff on
January 15, 2009, and based on the affidavits of Ms. Thiesing and Mr. Pohle, which
included the results of the July 2008 Inspection, Plaintiff sought and obtained from this
court a preliminary injunction enjoining Defendants from placing additional fill or
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performing any additional earthmoving work at the property designated as tax parcel
16.00-5-23 in the Town of Amherst, New York. (Dkt. 26 at 20). Defendants were
subsequently found in violation of the court’s preliminary injunction, see Dkt. 76 and 83;
Dkt.105. See United States v. Acquest Transit LLC, 2010 WL 6350470 (W.D.N.Y. Aug.
9, 2010) and 2010 WL 6350439 (W.D.N.Y. Aug. 25, 2010) (Reports and
Recommendations) adopted by 2011 WL 1167754 (W.D.N.Y. Mar. 29, 2011).
On June 13, 2011, Defendants served Defendants’ First Set of Interrogatories
and Document Requests. Plaintiff responded to Defendants’ requests on October 5,
2011, including a lengthy (352 pages) privilege log (Dkt. 232-1 ¶ 21) (“October 5, 2011
Privilege Log”) referencing Miller Declaration Exh. 3, and September 6, 2013 privilege
log (seven pages) (Miller Declaration Exh. 4) (“September 6, 2011 Privilege Log”). On
November 17, 2011, the court stayed this action pending resolution of a criminal
proceeding against Defendants Acquest Transit, LLC, Acquest Development, LLC, and
Huntress based on charges of false statements, obstruction of justice and violation of
the CWA, in connection with Defendants’ activities on the property, representations to
the EPA, and criminal contempt based on Defendants’ violations of the preliminary
injunction. The stay was vacated on June 29, 2015 as a result of a guilty plea to the
criminal contempt count of the Indictment, 13-CR-199, and payment of a $250,000 fine
by Defendant Acquest Transit LLC (13-CR-199, Dkt. 196). A new schedule for
discovery in this action was set by the court on October 15, 2015 (Dkt. 203).
Thereafter, on March 4, 2016, Plaintiff served additional discovery response
including a 40 page privilege log. Dkt. 232, ¶ 21 (“March 4, 2016 Privilege Log”). At
Defendants’ request, Dkt. 232-1 ¶ 21; Dkt. 239 at 4, Plaintiff reviewed its prior privilege
10
logs in March 2016, and, following Defendants’ letter to Plaintiff on March 17, 2016
detailing deficiencies asserted by Defendants in Plaintiff’s prior logs, served a revised
privilege log consisting of 218 pages together with additional documents on August 26,
2016, Dkt. 232-1 referencing Miller Declaration Exh. 10 (218 pages); Dkt. 238 at 5 (“the
August 25, 2016 Privilege Log” or “Log”). Dkt. 232-12. The Log describes in summary
form 1,179 documents protected as attorney work product or under the attorney-client
privilege, to which Defendants interposed objections to 320 entries.
By letter dated August 26, 2016, Defendants complained to Plaintiff regarding the
lateness of the August 25, 2016 Privilege Log advising Defendants would, as a result,
require additional time to review Plaintiff’s recent extensive document production as well
as the extensive August 25, 2016 Privilege Log, and requested Plaintiff agree to extend
discovery and expert disclosures. At the parties’ request, a Seventh Amended
Scheduling Order was filed August 30, 2016 (Dkt. 228) extending the period for fact
discovery until October 31, 2016, with motions to compel to be filed by October 3, 2016.
By Text Order (Dkt. 230) filed October 3, 2016, the motion to compel date was extended
to October 14, 2016. Until Defendants filed the instant motion to compel, Defendants
did not advise Plaintiff of any alleged deficiencies in the August 25, 2016 Privilege Log.
Dkt. 239 at 5. Defendants’ objections to the August 25, 2016 Privilege Log are
highlighted in several colors in the Miller Declaration Exh. 11 (passim). The August 25,
2016 Privilege Log explains that the grounds for withholding responsive documents as
asserted in the October 5, 2011, September 6, 2013, and March 4, 2016 Privilege Logs,
which previous logs also asserted the deliberative process privilege and “litigation
11
agreement,” is now limited to the attorney work product doctrine and attorney-client
privilege. Dkt. 232-1 ¶ 28.
Defendants’ objections to the Log include that (1) several author fields lack
identification that the author of the related document was an attorney, (2) for the bulk of
any documents Plaintiff withheld or redacted the related Log entries demonstrate that
the document was created at the direction of an attorney for Plaintiff prior to the time
when any litigation in the case could reasonably have been anticipated and thus cannot
constitute protected work-product, (3) the Log fails to establish the document was
generated by an attorney for Plaintiff in this case and hence does not qualify as an
attorney-client privileged communication, Dkt. 232-1 ¶ 29, (4) the Log fails to provide a
statement of the date of document creation or that redacted documents were not
produced, contrary to Plaintiff’s assertion in the Log, to Defendants, or (5) failure to
properly assert the privilege indicates the privilege was waived. To assist in evaluating
Defendants’ objections, Defendants have, in Exh. 11, color highlighted Defendants’
objections based on incomplete entries in purple, missing documents in red, defective
attorney-work product claims in yellow, and improper anticipation of litigation claims in
blue, and Defendants’ objections to illegitimate claims of attorney-client privilege are
outlined in red. Dkt. 232-1 ¶ 31. In opposition, Plaintiff maintains that despite
Defendants’ failure to meet and confer as a prerequisite to filing Defendants’ motions
pursuant to Fed.R.Civ.P. 37(a)(1) (“Rule 37(a)(1)”), Dkt. 239 at 5, as a result of
discussions between Plaintiff and Defendants, id., the number of issues requiring
adjudication “has been substantially narrow[ed].” Id. Plaintiff further argues all of
Plaintiff’s withholding of documents based on work product and attorney-client privilege
12
are valid. In their reply, Defendants do not specifically address Plaintiff’s assertions.
Defendants’ Reply, Dkt. 240 (passim).
DISCUSSION
A.
Rule 37(a)(1).
Plaintiff contends Defendants’ motion should be dismissed because, prior to filing
the motion, Defendants failed to meet and confer in a good faith effort to avoid the need
for a motion to compel as Rule 37(a)(1) requires. See Fed.R.Civ.P. 37(a)(1) (motion to
compel requires certification that movant has conferred or attempted to confer in good
faith with person or party failing to provide requested discovery in order to avoid court
action). Such certification is, however, not required where the record shows an attempt
to confer would be futile. See Gibbons v. Smith, 2010 WL 582354, at *2 (S.D.N.Y. Feb.
11, 2010). Here, Defendants contend Plaintiff’s objection to Defendants’ motion that
Defendants’ prior attempts to gain Plaintiff’s compliance with Defendants’ document
production requests in connection with Plaintiff’s first three privilege logs, including
Defendants’ March 17, 2016 letter and April 2, 2016 letter and April 2, 2016 conference
call, Dkt. 240 at 2, were ineffectual in that the August 25, 2016 Privilege Log includes
numerous identical deficiencies which Defendants previously pointed out in Plaintiff’s
prior logs, specifically blank fields, e.g., lack of dates as to the creation of the document
at issue, and non-identification of authoring attorneys and experts necessary to support
Plaintiff’s asserted work-product protection and attorney-client privilege claims. Dkt.
240 at 2. Thus, Defendants argue, Defendants substantially complied with Rule
37(a)(1), further conferrals with Plaintiff would be futile, and judicial attention to
13
Defendants’ objections to the August 25, 2016 Privilege Log is therefore required
without further engagements by the parties to avoid the need for judicial determination.
In the circumstances, the court finds the present dispute with a history of prior
attempts at resolution without resort to motion practice, and that despite several prior
communications and service by Plaintiff of three privilege logs prior to the August 25,
2016 Privilege Log at issue, the parties remain at loggerheads with regard to Plaintiff’s
continued assertions that numerous documents covered by the Log to which
Defendants have objected are either work-product or privileged. Accordingly, while
encouraging the parties to resolve issues raised by Defendants’ objections, and to
expedite completion of pre-trial discovery in this long-delayed matter, the court will
address the merits of the parties’ respective contentions regarding these issues. The
court therefore declines to dismiss Defendants’ motion for failure to comply with Rule
37(a)(1).
B.
Work-Product Protection.
Defendants dispute Plaintiff’s reliance on work-product protection available under
Fed.R.Civ.P. 26(b)(3)(A) (“Rule 26(b)(3)(A)”). Particularly, Defendants contend that the
August 25, 2016 Privilege Log is deficient because, inter alia, the Log fails to identify an
attorney involved in the production of a withheld document (Dkt. 232-13 at 5; Dkt. 240 at
7-8), asserts work-product protection for documents created by non-attorney employees
of the agencies, Dkt. 232-13 at 12; Dkt. 240 at 7-8, claims work-product protection for
documents reflecting communications between the EPA and Corps staff members and
the agencies’ attorneys “regarding tasks not requested to be completed for purposes of
litigation,” Dkt. 232-13 at 13, and that no work-product protection is available for any
14
EPA or Corps documents relating to the property created at the request of the EPA or
Corps counsel prior to September 8, 2008, the date the EPA issued (Dkt. 232-13 at 812; Dkt. 240 at 2-7) the September 5, 2008 Cease and Desist Order. Based on
Defendants’ contention that until the EPA learned of Defendants’ refusal to comply with
the September 2008 Cease and Desist Order, “all” of the EPA’s actions prior to the
September 5, 2008 Cease and Desist Order could only constitute “regular business
activities of the EPA,” i.e., routine regulatory activity, and therefore could not have been
in contemplation of litigation, Defendants also argue any responsive documents cannot
qualify as work-product as Plaintiff has failed to show they were created at the behest of
counsel because of a reasonable anticipation of litigation with Defendants. Dkt. 232-13
at 11. Alternatively, Defendants maintain Plaintiff waived work-product protection for
any documents, specifically those constituting the results of the July 2008 inspection of
the property by Ms. Thiesing and Mr. Pohle, as Plaintiff’s testifying experts, in support of
Plaintiff’s preliminary inspection request filed, see Dkt. 8 Exh. 2, and, in any event,
Defendants have a “substantial need” for such materials as these witnesses are
scheduled for deposition as experts designated by Defendants pursuant to Fed.R.Civ.P.
26(a)(2). Dkt. 232-13 at 14. Defendants point to no other facts to establish a
substantial need for the numerous other requested documents as to which Plaintiff
asserts work-product protection. As Defendants misread Rule 26(b)(3)(A) and
applicable caselaw, Defendants’ work-product contentions are without merit.
Rule 26(b)(3)(A) provides, in relevant part, that “a party may not discover
documents . . . prepared in anticipation of litigation . . . by or for . . . [a] party or its
15
representative (including a party’s attorney).”2 Fed.R.Civ.P. 26(b)(3)(A). However, if a
requesting party demonstrates the requested documents withheld as work-product are
relevant and the party has a “substantial need” for the documents in order “to prepare
its case” and “cannot without undue hardship obtain their substantial equivalent by other
means,” the court may order production. Id. Such production must nevertheless protect
against disclosure of “mental impressions, conclusion, or ‘legal theories’” of a party’s
attorney or “other representative concerning the litigation.” Fed.R.Civ.P. 26(b)(3)(B). In
United States v. Adlman, 134 F.3d 1194 (2d Cir. 1998), the Second Circuit held that, as
used in Rule 26(b)(3)(A), “in anticipation of litigation” extends work-product protection to
documents which “‘in light of the nature of the document and the factual situation in the
particular case, the document can fairly be said to have been prepared or obtained
because of the prospect of litigation.’” Adlman, 134 F.3d at 1202 (quoting Charles Alan
Wright, Arthur R. Miller, and Richard L. Marcus, 8 FEDERAL PRACTICE & PROCEDURE §
2024, at 343 (1994) (italics in original). Moreover, although the document is “created
because of the prospect of litigation . . . it does not lose [work-product] protection . . .
merely because it is created in order to assist with a business decision.” Id. On the
other hand, a requested document “prepared in the ordinary course of business or that
would have been created in essentially similar form irrespective of the [anticipated or
actual] litigation” is not within the scope of work-product protection provided by Rule
26(b)(3)(A). Id. (citing Advisory Committee Note to 1970 Amendments to Federal Rule
of Civil Procedure 26). In Adlman, petitioner withheld a tax memorandum regarding a
proposed merger prepared by an outside accountant-attorney because of the
petitioner’s belief there was a likelihood of an IRS challenge to petitioner’s claim for a
2
Unless otherwise indicated underlining and bracketed material added.
16
significant refund as a result of the merger which challenge in fact occurred four years
after petitioner claimed a substantial loss as a result of the merger. Adlman, 134 F.3d
at 1195.
In this case, according to Defendants, all of the actions taken by the agencies
prior to the September 5, 2008 Cease and Desist letter were directed to the question of
whether the property was connected to waters of the United States, a prerequisite to
enforcement of the Act against Defendants’ alleged construction, dredging and filling
activities resulting in unpermitted discharge of storm water and pollutants (fill and
dredged material) onto protected wetlands located within the property. Dkt. 232-13 at
10. Thus, Defendants contend the inspection and requests for information issued by
the EPA prior to September 5, 2008 constituted administrative actions carried out
incident to the EPA and the Corps’ routine regulatory functions to determine whether the
agencies had authority to enforce the Act against Defendants for suspected unlawful
activities affecting wetlands on the property, and any documents created during such
period therefore could not have been created in anticipation of litigation as required for
work-product protection. Id. However, Defendants’ argument falls of its own weight as
Adlman plainly held that even where a document is created by a party incident to “a
business purpose,” Adlman, 134 F.3d at 1202, or “as part of the ordinary course of
business,” id. at 1204, the documents are nonetheless protected if litigation is perceived
as a likelihood unless the record shows the document would have been prepared in
substantially the same form regardless of the party’s anticipation of litigation. Here, the
record shows that following observations of suspected unlawful construction activity in
the western portion of the property by the Corps as early as April 2007, the EPA
17
requested permission on October 2, 2007 to inspect the property for possible wetland
violations under the Act – which, if allowed, could have resolved the EPA’s suspicions
regarding the property and Defendants’ activities without litigation – but was refused by
Defendants on October 10, 2007.
In the experience of Phyllis Feinmark, an EPA attorney and Chief of the regional
EPA’s Water and General Law branch, who had prior dealings with Defendants in
connection with wetland protection problems at Defendants’ Wehrle Road property,
commencing in 2002, Dkt. 239-5 ¶ 4, when a property owner like Acquest refuses to
cooperate with an EPA inspection request, “an adversarial proceeding – either
administrative or judicial – will likely result.” Id. ¶ 8. Ms. Feinmark further averred that
the EPA would not have engaged in a detailed inspection and scientific evaluation of the
property pursuant to the July 2008 search warrant and issued the three preceding
requests for information on October 26, 2007, December 12, 2007 and January 9, 2008,
had the EPA “not anticipated litigation with Defendants over the suspected CWA
violations,” following Defendants’ refusal to cooperate on October 10, 2007. Dkt. 239-5
¶ 9. Thus, even if the agency actions directed to the property were intended to confirm
the EPA and Corps’ suspicions that Defendants were damaging wetlands located on the
property, the record sufficiently establishes such actions were primarily the result of the
agencies’ good faith belief, based on Defendants’ refusal to permit a physical inspection
of the property by the EPA and the agency’s own prior observations of the wetland
characteristics of the property and Defendants’ activities, that litigation in some form
with Defendants would be necessary to resolve the matter. See In re Rail Freight Fuel
Surcharge Antitrust Litig., 268 F.R.D. 114, 117 (D.C.C. 2010) (as used in Rule
18
26(b)(3)(A) the term “litigation” includes both judicial and administrative proceedings
where attorneys engage in representation of an adversarial nature); see also BristolMeyers Co. v. F.T.C., 598 F.2d 18, 29 (D.C.Cir. 1978) (work production available to
documents prepared by agency staff counsel in connection with administrative
enforcement proceeding). See U.S. Information Systems, Inc. v. International
Brotherhood of Electrical Workers Local Union Number 3, ALF-CIO, 2002 WL
31093619, at **1-2 (S.D.N.Y. Sept. 17, 2002) (holding requested document did not lose
work product protection that shielded documents from discovery in related NLRB
administrative action once administrative proceeding was concluded) (citing cases); and
Quinn v. Department of Health & Human Services, 838 F.Supp. 70, 75 (W.D.N.Y. 1993)
(document prepared by agency counsel in anticipation of quasi-judicial administrative
proceeding protected by work product doctrine from disclosure).
Nor is there any merit in Defendants’ contention that documents not prepared by
agency counsel, or at the specific direction of agency counsel, but rather prepared by
agency non-attorney staff such as investigators fall outside work-product protection.
Where such staff are supervised by or acting at the direction of agency counsel, the
relevant documents if prepared because of anticipated litigation are nonetheless
protected. See SEC v. Strauss, 2009 WL 3459204, at *6 (S.D.N.Y. Oct. 28, 2009)
(interview notes prepared by agency staff as non-attorneys acting at the direction of
agency attorney constituted work-product). In this case, as noted, Discussion, supra, at
18, Ms. Feinmark either handled the instant investigation personally or supervised EPA
staff, both attorneys and non-attorneys, working on the investigation since at least April
2007. Moreover, even if the EPA and the Corps staff were not directly supervised by
19
agency counsel, direct supervision by an attorney of a party’s non-attorney
representative who in anticipation of litigation prepared a requested document or, in this
case, agency staff members, is not a prerequisite to work-product protection under Rule
26(b)(3)(A). See Schaeffler v. United States, 806 F.3d 34, 44 (2d Cir. 2015) (tax
memorandum prepared by taxpayer’s accountant at taxpayer’s request subject to workproduct protection). As the rule itself makes clear, work-product protection extends to
documents prepared in anticipation of litigation prepared “by or for another party or its
representative (including the other party’s . . . agent”). See also Advisory Committee
Notes to 1970 Amendments to Rule 26(b)(3) (Subdivision (b)(3) protects “not merely . . .
materials prepared by an attorney, but also . . . materials prepared in anticipation of
litigation . . . by or for a party or any representative acting on [its] behalf”); Fingerhut ex
rel. Fingerhut v. Chautauqua Inst. Corp., Inc., 2014 WL 1572387, at *5 (W.D.N.Y. Apr.
18, 2014) (confidential communications between insurance agent and carrier assessing
potential liability of insured prior to expected suit is work product).
Defendants’ contention that the agencies’ actions “would have been completed
whether litigation was contemplated or not,” Dkt. 232-12 at 11, ignores the probable,
and predictable, effect of Defendants’ October 10, 2007 refusal to permit the EPA’s
access to the property in order to confirm or negate its suspicions regarding
Defendants’ violations of the Act causing damage to protected wetlands located on the
property. See Schaeffler, 806 F.3d at 44 (taxpayer-petitioner’s belief that it was “highly
likely” that the need for restructuring and refinancing would lead to tax audit and
subsequent litigation over resulting tax treatment supported finding that outside tax
advisor’s memorandum addressing tax implication of such proposed transaction
20
prepared at taxpayer’s request was created in anticipation of litigation, commenced four
years after preparation of requested memorandum, extending work-product protection
to the memorandum). That, as Defendants argue, Dkt. 232-13, the EPA engaged in
“regulatory investigations,” i.e., the three requests for information, in response to
Defendants’ refusal to cooperate in the agency’s investigation of the property, does not
sufficiently rebut the existence of the EPA’s reasonable belief that either administrative
or judicial litigation was likely after Defendants’ October 2007 refusal. Investigative
activities by an administrative agency prior to a decision to initiate formal judicial or
administrative proceedings are within the scope of work-product protection. See
Strauss, 2009 WL 3459204, at *5 (citing cases); see also S.E.C. v. NIR Group, LLC,
283 F.R.D. 127, 133 (E.D.N.Y. 2012) (staff attorney and accountant notes of witness
interviews to aid in S.E.C. determination of whether to proceed with litigation against
defendants protected as work-product); Chemcentral/Grand Rapids Corp. v. EPA, 1992
WL 281322, at *5 (N.D.Ill. Oct. 6, 1992) (EPA internal documents analyzing likely legal
challenges to proposed toxic waste cleanup plans to be implemented by EPA constitute
protected work-product). “[I]f an agency was not just collecting background information,
but had focused its attention on specific entities it believed may have violated the
statute it was charged with enforcing, then the agency was contemplating litigation.”
Chemcentral/Grand Rapids Corp., 1992 WL 281322, *5. The record plainly establishes
that the EPA’s attention to Defendants’ activities with respect to the property had come
into sharp focus as to Defendants’ October 10, 2007 refusal to permit the agencies
access to the property.
21
Defendants’ contention in this case that until the EPA learned whether
Defendants would abide by the September 5, 2008 Cease and Desist Order, the EPA’s
beliefs as to the likelihood of the need for litigation to determine whether the property
contained protected wetlands and whether Defendants’ activities on the property
violated the Act, were “speculative and not ‘reasonable,’” ignores the obvious fact that
Defendants’ October 10, 2007 refusal to allow the EPA to inspect the property caused
the EPA to reasonably, based on Defendants’ responses to the EPA’s investigation,
believe litigation with Defendants regarding the property was inevitable; the record in
this case amply supports that well-prior to this time, the EPA had focused its attention
on Defendants as possible violators of the Act’s protection of wet-lands on the property
confirmed by Defendants’ refusal to agree to an EPA inspection in October 2007. Ms.
Feinmark’s experience with uncooperative landowners in similar circumstances is
another relevant fact reinforcing the EPA’s reasonable belief that after Defendants’
refusal on October 10, 2007 to permit an administrative inspection of the property,
enforcement action by EPA was a likelihood. See Schaeffler, 806 F.3d at 44 (rejecting
district court’s analysis that taxpayer would have obtained tax advice at issue regardless
of possible audit as “ignor[ing] reality”). Thus, Defendants’ oppositional attitude toward
the EPA’s focus on the property, particularly demonstrated by Acquest’s assertion in its
February 8, 2008 response to the January 9, 2008 § 308 Request that the EPA lacked
jurisdiction over the property, was, Facts, supra, at 7, plainly a significant factor that
motivated Defendants’ October 10, 2007 refusal thereby assuring the necessity,
reasonably perceived by the EPA at that point, for administrative, if not judicial, litigation
to resolve Acquest’s assertion. To conclude otherwise would be to contravene
22
Schaeffler’s admonition that in determining work product claims involving administrative
enforcement activity, courts should not overlook such a “reality.” Id. Defendants’
oppositional attitude in this case, confirming the correctness of the EPA’s judgment, was
repeated by Defendants’ defiant assertion to the EPA following the July 2008 inspection
that Defendants’ dumping, filling, and earth removal on the property would continue
despite the February 21, 2008 cease and desist order prohibiting such activity, Facts,
supra, at 8, and by Acquest pleading guilty to criminal contempt for refusing to comply
with the court’s preliminary injunction. Facts, supra, at 9-10.
Defendants also contend that Plaintiff’s reliance on Ms. Feinmark’s opinion that
Defendants’ refusal to cooperate in the EPA’s request to inspect the property for
possible Clean Water Act violations supports a belief that future litigation concerning the
matter was likely amounts to governmental overreaching, official “hubris.” Dkt. 240 at 5.
More specifically, according to Defendants, the absence of any such reasonable belief
by the EPA in the likelihood of future litigation as of October 2007, is demonstrated by
Plaintiff’s delay until July 2008, in obtaining an administrative search warrant, Dkt. 240
at 6, confirming that in October 2007, Plaintiff lacked sufficient evidence that the EPA
had jurisdiction to enforce the Act based on the presence of protected wetlands in the
property, Dkt. 240 at 6-7, and as a result there was no evidence to support any belief by
the EPA that there was a likelihood of litigation at that time. Id. Defendants’ argument
is predicated on flawed logic and irrelevant hyperbole.
The issue raised by Defendants’ motion is not whether the EPA had enforcement
jurisdiction over the property but whether the agency reasonably entertained the view
that there was a likelihood of litigation against Defendants with respect to these matters,
23
particularly including the question of the EPA’s so-called jurisdiction under the Act to
engage in enforcement activities against Defendants regarding the presence of
wetlands on the property and Defendants’ wrongful actions. See Schaeffler, 806 F.3d
at 43-44 (document protected if “nature” of document and “factual situation of the
particular case” show its preparation was based on party’s belief in likelihood of litigation
as to subjects discussed in document). To insist that a determination of the EPA’s
jurisdiction under the Act to support the EPA’s enforcement activity is prerequisite to
any reasonable belief by the EPA that litigation was likely for purposes of Rule
26(b)(3)(A) at that time ignores this distinction as well as the other indicia of the likely
need for litigation present in the record, either administrative or judicial, to resolve the
issue including knowledge by the Corps of the existence of hydric soils, indicative of
wetlands, on the property, and mapping of the property by the Federal Emergency
Management Agency, the DEC, and the United States Fish and Wildlife Service also
showing the property containing wetlands, all of which the EPA was aware when
Acquest refused access on October 10, 2007.
The agencies were also informed that Defendants claimed the observed
construction activity on the western side of the property, including a 24 by 1500 foot
access gravel road with signs seeking fill, was to facilitate growing of corn in that
location. These assertions, by Defendant Acquest, a major local developer of
commercial property that had recently acquired the property despite the preacquisition
findings of Defendants’ consultant that the property contained a significant percentage
of wetland acreage, in order to merely grow corn, appear implausible on their face and
instead intended to divert the EPA’s attention away from Defendants’ wetland damaging
24
activities on the property. Such implausibility, coupled with the apparent inconsistencies
in Defendants’ representations regarding the purposes of the observed construction
activity, including the construction of a large-scale access road and a public solicitation
for fill resulting in the dumping and spreading of hundreds of truckloads of fill on the
western area of the property (conduct not obviously consistent with or necessary to any
alleged authorized agricultural activity such as growing corn) reasonably caused the
EPA to conclude Defendants had engaged in unlawfully destroying protected wetlands
on the property. Taken together with Defendants’ refusal to cooperate in any on-site
investigation, which could have easily negated such beliefs if the results had warranted,
strongly supports that the EPA reasonably expected that some form of litigation with
Defendants would be required to resolve these matters and was likely to arise in the
reasonably foreseeable future, a fact confirmed by issuance of the EPA’s February
2008 cease and desist order, the July 2008 search warrant, and the commencement of
this action in January 2009. That the EPA delayed obtaining the administrative warrant
is not inconsistent with such a reasonably objective expectation of prospective litigation
as of October 2007; investigators often do not obtain a warrant immediately upon
developing probable cause but, rather, await further investigative results in order not to
alert the target and unnecessarily compromise the investigation. In short, anticipated
litigation over the question of the EPA’s authority under the Act with respect to
protection of wetlands on the property is nevertheless a form of “anticipated litigation”
within the scope of Rule 26(b)(3)(A). Defendants’ reliance, Dkt. 240 at 7, on LolongoGedeon v. Child & Family Services, 2012 WL 1714914, at **8-9 (W.D.N.Y. May 15,
2012) is unavailing. In that case, the court held that work-product protection did not
25
extend to preliminary communications between defendant and its insurer because
generally such communications prior to a coverage determination and in the absence of
any indication that litigation of the putative claim was imminent, were not protected
work-product. Id. In contrast, in the instant case the evidence of Defendants’ suspect
actions on the property and improbable explanations of such conduct coupled with
Defendants’ refusal to cooperate with the EPA supported that as of the date of such
refusal, litigation with Defendants was a strong likelihood. See Fingerhut ex rel.
Fingerhut, 2014 WL 1572387, at *5 (insurance agent report was work product where
notice of alleged negligence – a fallen rotted tree – severely injured plaintiff and
established immediacy of claim). Defendants cite to no authority requiring a different
conclusion on this record.
The court therefore finds that work-product protection attached to documents
prepared by Plaintiff not later than October 10, 2007 when the EPA was refused access
to the property. Applying this threshold determination, the court turns to an examination
of the Log to determine whether the described documents withheld by Plaintiff qualify as
work-product.
At the outset the court notes the Log consists of 1,179 entries covering 218
pages. Many of the 320 objections asserted by Defendants involve disputed work
product entries have as an author Chris Saporita who Defendants do not dispute is an
EPA attorney and was assigned to the case on December 10, 2007 (Dkt. 239-5 ¶ 12).
In the absence of a request by either party the court has not engaged an in camera
inspection of the disputed documents. Based on the court’s review of the summary
descriptions of the disputed items for work-product protection as Plaintiff asserts, the
26
court finds that the respective Log entries describing, albeit in summary form, the
particular documents at issue, when considered against Defendants’ objections, provide
sufficient indicia as to the nature of the document to enable the court to determine with
a reasonable degree of certainty whether the documents qualifies for work product
protection. See Bristol-Meyers Company, 598 F.2d at 29 (applying work-product
protection to documents based on summary descriptions provided in defendant
agency’s index). Further, the court finds that as Defendants’ objections relate to
discernible groupings of documents, a single rationale for granting or withholding workproduct protection avoids the need to decide each disputed document separately. For
example, Defendants object to 15 documents, Bates Range USEPAT0000632 – 646
appearing in the Log (Dkt. 232-12 at 3-4) on the ground that because the Log failed to
include a corresponding date for each document Defendants were unable to assess the
validity of Plaintiff’s asserted work-product protection. However, as the court has
determined that all documents created by the EPA after October 10, 2007 are subject to
work product protection in this action, see Discussion, supra, at 14-26, and it is
undisputed that the author of such documents, Chris Saporita entered the case on
December 10, 2007, the court rejects Defendants’ corresponding objections based on
the lack of a date of creation in the Log. Turning to the Log’s stated nature of the
documents the Log description indicates each such document was a “to do item memo
re: litigation preparation.” That Plaintiff included a description of each of these
documents in the Log is strong evidence that the “to do” memoranda by Saporita
pertained to the instant litigation requiring Plaintiff to reference the documents, and
Defendants do not argue otherwise. Accordingly, the court finds such documents were
27
prepared in anticipation of the litigation in this case, and given they were created by an
EPA attorney assigned to the case after October 10, 2007, the documents are highly
likely to reveal attorney mental impressions, conclusions, opinions and theories, entitled
to special protection under Rule 26(b)(3)(B); such documents thus may be withheld by
Plaintiff as protected work-product. Another large (41) group of referenced documents
to which Defendants object on similar grounds, appears at Dkt. 232-12 at 5-9. As
noted, given that Defendants contend that Defendants have complied with Fed.R.Civ.P.
26(b)(3)(A)(i) and (ii) (party may obtain disclosure if party demonstrates “substantial
need”) only with respect to documents pertaining to Ms. Thiesing and Mr. Pohle’s
expected expert deposition testimony, see Dkt. 232-13 at 14, and such documents have
been provided by Plaintiff to Defendants pursuant to Fed.R.Civ.P. 26(b)(4), see Dkt. 239
at 12-13, Defendants fail to show any substantial need with respect to Saporita’s “to do”
memoranda. As such, Defendants’ objections to Plaintiff’s assertions of work product
protection as to these documents are overruled.
The next category of disputed documents listed in the Log to which Defendants
object include numerous documents authored by Saporita and sent to other agency
attorneys and staff members, or authored by such staff employees and sent to Saporita.
See, e.g., Bates Range USEPAT0000413, Dkt. 232-12 at 2. As the Log states, these
documents included a request by counsel to the EPA for a search for documents
regarding Defendant Acquest Transit. Defendants’ objection asserts it does not
constitute work product “in anticipation of litigation because it was created 18 months
after the instant action was filed.” However, such objection ignores that work product
protection under Rule 26(b)(3)(A) also extends to documents prepared “in anticipation
28
of litigation or for trial.” It is well-settled that attorney-work product created after an
action is commenced is also within the scope of Rule 26(b)(3)(A). See Bovis Lend
Lease, LMB, Inc. v. Seasons Contracting Corp., 2002 WL 31729693 at *4 (S.D.N.Y.
Dec. 5, 2002) (“Certainly, documents created after litigation has already commenced, . .
. are likely to be covered by the work-product doctrine.” (citing Magee v. Paul Revere
Life, Ins. Co., 172 F.R.D. 627, 640 (E.D.N.Y. 1997))). Thus, all documents created by
the EPA or the Corps either by agency counsel or the agencies’ staff, in connection with
the investigation of Defendants after October 10, 2007, including those prepared after
the filing of the Complaint on January 9, 2009, are protected as work-product. As such,
Defendants’ numerous objections to this category of documents as described in the Log
are also without merit. Defendants do not contend that Plaintiff’s reliance on workproduct protection as of October 10, 2007 is negated by the later commencement of this
action in January 2009.
Nor is there any indication in the descriptions of the disputed documents as
provided by the Log that given the nature of the documents and circumstances of their
creation the form of the documents would have remained the same if litigation had not
been anticipated. See NIR Group, LLC, 283 F.R.D. at 131. “Adlman established a test
of actual causation for this determination: where a document would not have been
prepared in substantially the same form but for the prospect of litigation privilege [workproduct] applies; where the document would have been prepared in the same fashion in
any event, it goes unprotected.” Id. (citing Adlman 134 F.3d at 1198). For example, in
this case, document USEPAT0006084 (Dkt. 232-12 at 20) to which Defendants object,
lists an e-mail communication dated September 2, 2008 between EPA counsel and
29
David Pohle, an EPA staff member, “discussing potential consent orders in Acquest
Transit Enforcement action.” It is difficult to conceive how a proposed consent order
would have been discussed by the EPA, let alone drafted, unless litigation over the
September 5, 2008 Cease and Desist Order was not then anticipated by the EPA. Yet,
Defendants’ objection asserts that this communication somehow consisted of
“[r]egulatory business rather than legal function.” Id. True, when an agency initiates
enforcement activity it is acting pursuant to its regulatory authority, but Adlman makes
clear such duality of function does not remove work-product protection. See Schaeffler,
806 F.3d at 43 (“Documents prepared in anticipation of litigation are work product, even
when they are also intended to assist in business dealings.”) (citing Adlman, 134 F.3d at
1204). Thus, although preparation of a consent order following issuance of an
administrative cease and desist order represents the exercise of an agency’s regulatory
authority, it also represents an activity that by its nature and the circumstances of this
case, Schaeffler, 806 F.3d at 43-44, demonstrate it also was created incident to the
near-certain prospect of at least administrative litigation with Defendants concerning the
property. Significantly, Defendants do not argue any of the disputed documents would
have been created in the same form even if such litigation had not been anticipated by
the EPA, and it would offend common sense to conclude otherwise with respect to this
group of documents. In any event, Defendants’ objection to this and similar documents
described in the Log are without merit.
Another category of disputed documents reflected in the Log are those among
EPA non-lawyer staff members. See, e.g., USEPAT00006298-299 (Dkt. 232-12 at 21)
(covering an August 12, 2008 e-mail between two EPA non-attorney staff members
30
“regarding investigations conducted at the request of counsel about possible CWA
violations at the Transit property”). As discussed, Discussion, supra, at 19-20,
documents created by a party’s non-attorney employees or agents, as well as those
between counsel and party’s non-attorney representatives, are protected by Rule
26(b)(3)(A). Additionally, Ms. Feinmark averred that as EPA Regional Counsel she
“supervised” EPA staff in connection with this matter since April 2007 when the Corps
referred the matter to the EPA to “conduct an investigation.” Dkt. 239-5 ¶ 1. Ms.
Feinmark’s involvement in the EPA’s interactions with Defendants commenced in 2002
when the agencies investigated Defendants’ potential CWA violations with respect to
wetlands located at Defendants’ Wehrle Drive property. Defendants do not dispute
Feinmark’s statement with regard to such supervision. Thus, all communications
between and among the EPA and Corps’ non-attorney agency staff after October 10,
2007 in this case are within the scope of work-product protection. “The work product
privilege protects documents produced by staff working at an attorney’s direction, in
addition to those prepared by the attorney herself.” NIR Group, LLC, 283 F.R.D. at 134
(citing cases). Moreover, Rule 26(b)(3)(A) does not limit its scope to non-attorney
representatives of a party who are supervised by an attorney for the party. See Proctor
& Gamble Co. v. Ultreo, Inc., 574 F.Supp.2d 334, 336 (S.D.N.Y. 2008) (“The work
product privilege applies not only to lawyers, but also to ‘other types of representatives
including, for example, investigators seeking factual information.’”) (quoting Doe v.
United States (In re Grand Jury Subpoena Dated October 22, 2001)).
The same analysis applies to Defendants’ objections to the June 17, 2010 e-mail
from Assistant U.S. Attorney Aaron Mango to the EPA and Department of Justice
31
attorneys regarding the status of a related criminal case against Defendants arising
from Defendants’ actions with regard to the property. See USEPAT0008412-0008414
(Dkt. 232-12) at 39. As the pendency of the related criminal case against Defendants
could significantly affect the progress of Plaintiff’s investigation of Defendants’ activities
through assertions of privilege in the instant civil litigation, it cannot be said that such a
communication would have been provided regardless of the pendency of the instant
case. Moreover, communications between federal prosecutors and federal
administrative agencies involved in parallel investigations and litigation regarding the
same parties are also within the scope of Rule 26(b)(3)(A). See United States v.
Zingsheim, 384 F.3d 867, 872 (7th Cir. 2004) (“The work-product privilege applies to
many other discussions between prosecutors and investigating agents both state and
federal.”) (citing FTC v. Grolier, Inc., 462 U.S. 19 (1983)). See also Cohen v. City of
New York, 255 F.R.D. 110, 124 (S.D.N.Y 2008) (same), and Atlantic Richfield Company
v. Current Controls, Inc., 1997 WL 538876, at *2 n. 3 (W.D.N.Y. Aug. 21, 2997) (same).
Therefore, the need for Plaintiff’s counsel to be appraised of developments in the
related criminal case and for the prosecutor to be aware of developments in this civil
action places this e-mail within the scope of work-product protection whether in
anticipation of litigation or for trial after the action was commenced. See NIR Group,
LLC, 283 F.R.D. at 134 (stating in dicta, that preparation of document may qualify for
work-product protection, which protection is not lost during commencement or
conclusion of parallel criminal proceedings). This conclusion applies to other similar
communications between Pohle and Mango such as Nos. 20659-60, 20661-61, 2066263, and 20694-95 (Dkt. 232-12) at 98-100 to which Defendants also object. Thus, none
32
of Defendants’ objections to any documents created by non-attorney agency staff
members withheld as work-product after October 10, 2007 have merit.
In several instances, see, e.g., Dkt. 232-12 at 66, Plaintiff failed to provide a date
for a document’s creation, which Defendants contend prevents Defendants from
formulating a possible objection. However, in the context of the related entries, it is fair
to find such undated Log documents were created after October 10, 2007.
Notwithstanding, as Bates No. 15070-72 was prepared on June 5, 2007 prior to October
10, 2007, it should be produced as should No. 15532-38, dated August 1, 2007, No.
15216-23, created August 6, 2007, 15230-32, 15436-38, and 17762-64, dated
September 21, 2007, and 15313-17, dated October 1, 2007. In addition, the Log also
contains several entries referencing documents created prior to October 2007 from or to
David Pohle or as to which Mr. Pohle received a copy, who has been designated by
Plaintiff as a testifying expert and for whom Plaintiff has provided to Defendants all
“contested documents that reflect factual materials Ms. Thiesing and Mr. Pohle
considered in drafting scientific reports.” Dkt. 293 at 7. See also Dkt. 293 at 12-13. If
such production, as Plaintiff states, does not include all of the documents regarding
Pohle enumerated in the Log dated prior to October 2007, the documents are not workproduct, and should also be produced to Defendants. If this is not the case, Plaintiff
shall within 10 days advise the court with specifics and support for such refusal to
produce so that the court may make further rulings on any such remaining issues.
In some instances, Defendants object that copies of the described documents,
redacted based on an asserted attorney-client privilege, were not produced. See, e.g.,
Log at 128-29; 136-37. Plaintiff is directed to provide the redacted copies to
33
Defendants. Additionally, Plaintiff shall, within 10 days, provide to Defendants a
supplemental privilege log stating the date of creation for any documents to which
Defendant objected to Plaintiff’s assertions of attorney work-product and attorney-client
privilege. Defendants may file a further motion to compel within 10 days thereafter
should Defendants disagree with Plaintiff’s respective assertions of attorney-client
privilege or attorney work-product as to these disputed items.
In other instances, see, e.g., Log at 133, Dkt. 232-12 at 134 (Bates Nos. 2951543, 29544-80, 29581-97) the dates of creation of the described documents (2005, 1999
and 1998) substantially predate October 2007 thereby making it unlikely such
documents could reasonably be considered as having been created by the agencies in
contemplation of litigation, i.e., after October 10, 2007, with respect to the property.
Although the Log indicates these documents were prepared at the direction of counsel
in connection with “on-going litigation,” the Log fails to provide an indication as to the
nature, administrative or judicial, of such asserted litigation sufficient to support
Plaintiff’s attorney work-product claim. Accordingly, such documents shall be produced
to Defendants.
In two instances, see Log at 172, Dkt. 232-12 at 173, Defendants object that the
document at issue, (Bates No. 3191-92) and Log at 125, Dkt. 232-12 at 126 (Bates No.
26132-33), was disclosed to Defendants and therefore Plaintiff’s asserted work product
protection was waived. If Plaintiff believes, contrary to Defendants’ assertion, no waiver
occurred, Plaintiff shall promptly advise the court so that a separate briefing schedule
directed to the issue of waiver as to these documents can be established by the court.
Alternatively, the parties may also submit a proposed joint briefing schedule.
34
In sum, except as indicated otherwise, all of Plaintiff’s documents which the
August 25, 2016 Privilege Log indicates were created after October 10, 2007,
regardless of whether created by the agencies’ counsel, at the direction or under
supervision of the agencies’ counsel, or by the staff of such agencies, are entitled to
work-product protection and as all documents withheld by Plaintiff are asserted to be
withheld under both work-product protection and attorney-client privilege, and as
Defendants have, except as discussed, failed to comply with Rule 26(b)(3)(A)(i) and (ii),
it is unnecessary for the court to separately address the merits of Plaintiff’s alternatively
asserted attorney-client privilege covering the documents in response to Defendants’
numerous objections.
C.
Attorney-Client Privilege.
Plaintiff also asserts only attorney-client privilege for seven documents,
specifically Log at 89, Dkt. 232-12 at 90 (Bates No. 18458-64), 101, Dkt. 232-12 at 102
(Bates No. 20878-80), 103, Dkt. 232-12 at 104 (Bates No. 21380), 110, Dkt. 232-12 at
111 (Bates No. 22513), 111, Dkt. 232-12 at 112 (Bates No. 22616), 122, Dkt. 232-12 at
123 (Bates No. 23901-02), and 124, Dkt. 232-12 at 125 (Bates No. 24246).
As to Bates No. 18458-64, the Log indicates this document was created by one
Daniel Montella for one Murray Lantner on August 1, 2007, and is an e-mail among EPA
staff and counsel in connection with potential CWA violations at the property. However,
neither person is described as an EPA attorney, see Dkt. 239 at 15 (listing six EPA
attorneys who may have been involved in the investigation and subsequent litigation of
this case). If Plaintiff wishes to continue to assert this document as privileged, it shall
provide further supporting documentation within 10 days of this Decision and Order.
35
Defendants may file any response within 10 days thereafter. If Plaintiff fails to do so,
the document shall be provided to Defendants. As to Bates No. 20878-80, although Ms.
Feinmark is copied on the e-mail created August 1, 2007, regarding potential CWA
violations on the property, neither the author, David Pohle, nor the recipient is indicated
as an EPA attorney. Should Plaintiff wish to maintain the asserted privilege, supporting
documentation shall be filed within 10 days. Defendants may respond within 10 days
thereafter. Should Plaintiff fail to do so, the document shall be produced to Defendants.
As to Bates No. 21380, the same analysis and ruling shall apply. As to Bates No.
22513, the Log indicates this e-mail is from an EPA staff investigator and expert, David
Pohle, to Aaron Mango, the assistant United States attorney responsible for prosecution
of Defendants in the related criminal proceeding. Such communications are within the
scope of the attorney-client privilege because the communications relate to the EPA’s
common interest in enforcement of the CWA both civilly and criminally against
Defendants as prosecuted by the United States Attorney for this district during the
pendency of this action, see Zingsheim, 384 F.3d at 871-72 (“attorney-client privilege
covers conversations between prosecutors (as attorneys) and client agencies within the
government”), because attorney-client relationship exists between the Department of
Justice and the agencies. See Town of Norfolk v. U.S. Army Corps of Engineers, 968
F.2d 1438, 1457 (1st Cir. 1992). Moreover, such communications on pending legal
matters are well-within the scope of the privilege, see In re Grand Jury Investigation,
399 F.3d 527, 534 (2d Cir. 2005) (citing Swidler & Berlin v. United States, 524 U.S. 399,
403 (1998) (“consultation with government lawyers” within privilege); Defendants’
objection as to this document is therefore overruled.
36
As to Bates No. 22616, because the Log fails to indicate any attorney was
involved in the creation or receipt of the described e-mail, the court finds it necessary to
apply the same ruling as stated with regards to Bates No. 1845-864, supra. As to Bates
No. 23901-02, as this is another e-mail from Mr. Pohle to AUSA Mango, the same
reasoning and ruling as regards to Bates No. 22513, Discussion, supra, at 36, applies.
As to Bates No. 24246, because the Log fails to indicate that either of the listed
addressees, Laurie Dubriel and Robert Conway, are federal prosecutors assigned to the
related criminal proceeding, see Discussion, supra, as to Bates Nos. 22513, 23901-02,
Plaintiff shall provide supplementary documents within 10 days to support Plaintiff’s
assertions of the privilege for this document; otherwise, the document shall be produced
within 10 days. Defendants may file any response within 10 days after Plaintiff’s filing.
CONCLUSION
Based on the foregoing, Defendants’ motion (Dkt. 232) is GRANTED in part, and
DENIED in part.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: February 21, 2017
Buffalo, New York
37
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