United States of America v. Acquest Transit LLC
DECISION AND ORDER. The privileged nature of Hostetlers communication to Feinmark and in turn to Montella attaches to Montellas e-mail and therefore the e-mail to Pohle and Thiesing remains within the privilege and need not be produced to Defendants. Signed by Hon. Leslie G. Foschio on 3/7/2017. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
ACQUEST TRANSIT LLC,
ACQUEST DEVELOPMENT, LLC,
MR. WILLIAM L. HUNTRESS,
In its Decision and Order filed February 21, 2017 (Dkt. 244), the court directed
Plaintiff to submit certain withheld documents based on the attorney-client privilege
created prior to October 10, 2007 for in camera review. In accordance with that
direction, Plaintiff, by letter dated March 3, 2017 (Dkt. 248), submitted a copy of an email from EPA supervisor Daniel Montella to EPA scientists David Pohle (“Pohle”) and
Mary Anne Thiesing (“Thiesing”) who have also been recently designated as Plaintiff’s
testifying experts pursuant to Fed.R.Civ.P. 26(a)(2). Montella is Pohle’s supervisor.
The e-mail communicates advice received by EPA’s regional counsel Phyllis Feinmark
from Plaintiff’s then DOJ attorney Eric Hostetler regarding the need and process by
which to inspect Defendant’s Transit Road property which is the subject of the instant
action under the Clean Water Act.
It is established law that the privilege will be lost if information within the privilege
is communicated by a client to persons within the client’s organization as to whom the
client cannot show a need-to-know the withheld information. See Robbins & Myers, Inc.
v. M.J. Huber Corp., 274 F.R.D. 63, 94 (W.D.N.Y. 2011) (citing caselaw). Here, as EPA
scientists who eventually inspected the property and prepared reports pursuant to an
administrative warrant issued by this court in July 2008, both Pohle and Thiesing had
good reason to need to know what Hostetler’s advice was regarding his recommended
inspection procedures for the property. Accordingly, by sending the e-mail containing
such advice to Pohle and Theising, Montella did not breach the confidential and
privileged nature of Hostetler’s advice which itself was well within the scope of the
privilege. See Robbins & Myers, Inc., 274 F.R.D. at 84 (citing Diversified Grp., Inc. v.
Daugerdas, 304 F.Supp.2d 507, 512 (S.D.N.Y. 2003) (the attorney-client privilege exists
to protect both attorney’s giving of professional advice to client, as well as client’s
communications to attorney to enable attorney ‘to give sound and informed advice’”)
(citing Upjohn Co. v. United States, 449 U.S. 383, 390 (1981)). Thus, the privileged
nature of Hostetler’s communication to Feinmark and in turn to Montella attaches to
Montella’s e-mail and therefore the e-mail to Pohle and Thiesing remains within the
privilege and need not be produced to Defendants.1
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: March 7, 2017
Buffalo, New York
A copy of the Montella e-mail will be retained by the court under seal as a Court Exhibit to facilitate
potential judicial review.
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