
Subscribe for updates
Recent Posts
- EPA Can Reconsider Rulemaking without Vacatur in Clean Air Act Citizen Suit, Sixth Circuit Holds
- In Rejecting J&J Bankruptcy Petition, Court Reminds that Financial Distress is a Prerequisite to Bankruptcy
- Third Circuit Confirms 27-Year-Old Clean Water Act Consent Decree Still Enforceable
- Pennsylvania Commonwealth Court Finds Local Stormwater Charge Constitutes A Tax
- Nuns’ Religious Freedom Lawsuit Against Pipeline Held To Be Impermissible Collateral Attack On FERC Approval
Topics
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- National Priorities List
- Vapor Intrusion
- Solvents
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Federal Circuit
- Environmental Covenants
- Divisibility
- Apportionment
- National Contingency Plan
- Strict Liability
- Water Pollution Control Act
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Asbestos
- Martime
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- FERC
- National Forest Management Act
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Brownfields
- Brownfield
- Innocent Party
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- Effluents
- FOIA
- Sediment Sites
- EHB
- Texas
- Missouri
- Pipelines
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Drinking Water
- Michigan
- North Carolina
- Bankruptcy
- Hearing Board
- Civil Penalties
- Clean Streams Law
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Property Value
- Tax assessment
- Fair Market Value
- Damages
- Stigma
- Storage Tank
- Energy
- Electric
- Fifth Circuit
- Indemnification
- Ninth Circuit
- Arizona
- Attorney-Client
- OPRA
- Iowa
- Discovery Rule
- Fourth Circuit
- Eighth Circuit
- Taxes
- Administrative Appeals
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Inspection
- Residential
- New York
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- Federal Energy Regulatory Commission
- D.C. Circuit
- HAPs
- Hazardous Air Pollutants
- Mercury
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Causation
- Spill Act
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Zoning
- Act 13
- Duty to Defend
- Insurance Coverage
- Eminent Domain
- Landfill
- Private Right of Action
- Sixth Circuit
- Illinois
- Water
- Diligent Prosecution
- Subject Matter Jurisdiction
- Citizen Suit
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Montana
- Navigability
- Riverbed
- Seventh Circuit
- Indiana
- Breach of Contract
- Public Lands
- Bona Fide Prospective Purchaser
- Green House Counsel
- EPA
- Boiler MACT
- Rulemaking
- CISWI
- Enforcement
- Equity
- Laches
- Delay Notice
- Consent Decree
- Contribution
- Declaratory Relief
- Second Circuit
- NPDES
- Procedure
- Standing
- Dimock
- Medical Monitoring
- Legislation
- Case Update
- Louisiana
- Certification
- Contamination
- Dukes
- CLE
- Decisions of Note
- Cases to Watch
- Discovery
- Expert Witness
- Privilege
- Work Product
- CERCLA
- Cost Recovery
- Defense Costs
- Insurance
- Real Estate
- Remediation
- Response Action Contractors
- Consultant Liability
- Negligence
- Army Corps
- Donovan
- Rapanos
- Kentucky
- Nuisance
- Odors
- Class Actions
- Trespass
- Farming
- Hog Barn
- Informal Agency Action
- Administrative Hearing
- New Jersey
- ISRA
- Waste
- Air
- Cancer
- Combustion
- Emissions
- Railroad
- RCRA
- Speaking Engagements
- Toxic Torts
- Federal Procedure
- Removal
- Third Circuit
- Permits
- Statute of Limitations
- Title V
- Clean Air Act
- Supreme Court
- Cleanup
- Superfund
- Tolling
- Camp Lejeune
- Multi-District Litigation
- Statute of Repose
- Mineral Rights
- Due Process
- Enforcement Action
- Wetlands
- Administrative Procedures Act
- Deeds
- Clean Water Act
- Marcellus Shale
- Exploration
- Leases
- Oil and Gas
- Royalties
- Drilling
Blog editor
Blog Contributors
One of the finest lines that environmental attorneys walk is in protecting communications between counsel and a retained environmental consultant from disclosure in litigation. In a recent case out of the Northern District of Indiana, Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), the Court found that communications between counsel and consultants retained by the counsel were not protected by the attorney-client privilege, in large part because the consultants also performed remedial work. However, as the work was done "in anticipation of litigation" with, among others, the Indiana Department of Environmental Management (IDEM) and EPA, substantive communications were protected by the attorney work product doctrine.
Defendant Hartford Iron operates a scrap metal recycling facility in Indiana. In connection with certain enforcement actions by IDEM and EPA, Hartford had entered into two settlement agreements with its insurer, Plaintiff Valley Forge. The second settlement agreement included provisions by which Valley Forge agreed to appoint counsel to represent Hartford and to replace the existing environmental consultant with a new consultant, August Mack, who designed and installed a stormwater management system to partially address the issues raised by the enforcement actions. The lawyer Valley Forge appointed, Jamie Dameron, had, prior to becoming an attorney, worked as an environmental consulting geologist.
In the course of representing Hartford, Dameron discovered that the stormwater system was failing, resulting in noncompliance with an existing remediation order entered into between IDEM and Hartford. Thus, Dameron hired consultant Keramida to inspect and evaluate the failing and defectively-designed system and, eventually, Hartford retained Keramida to redesign and oversee construction of a replacement system, which was approved by the IDEM in connection with resolving NOVs issued as a result of the failure of the first system. A second consultant, CH2M, was retained, again by Dameron, to test and then excavate PCB impacted soils.
In litigation between the Valley Forge and Hartford, Valley Forge sought communications between Dameron and Keramida and CH2M, disputing Dameron's claim of both the attorney-client privilege and the attorney work product protection. In resolving the discovery dispute, and after an in camera review of the documents at issue, the Court held that, notwithstanding the fact that the consultants had been retained by Dameron, the communications were not protected by the attorney-client privilege because they did not primarily relate to “legal assistance;” rather they related to environmental remediation at the Site. The Court also opined that the privilege was not applicable because Dameron, at least with respect to the remediation, appeared to be acting more like an environmental consultant (which she has been) than an attorney, raising further doubt as to whether these communications truly involved legal assistance.
On the other hand, the Court did find that substantive communications were protected by the attorney work product doctrine as the threat of litigation by IDEM and EPA were the driving force in the consultants’ work. The Court held that even a document that has dual purposes, only one of which is in anticipation of litigation (e.g. a remediation work plan), may be protected by the work product doctrine. On the other hand, the Court noted that not all documents prepared during or in advance of litigation fall within the doctrine’s protection. According to the Court, non-protected documents included transmittal letters and billing records.