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.   Read More »

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In general, when a party shares communications or information protected by the attorney-client or work product privilege with a third party, the privilege is waived.  However, in many jurisdictions, if this sharing occurs when there is anticipated or actual litigation, a “common interest” exception allows parties to disclose privileged information amongst themselves while still preserving the privilege against disclosure to their adversaries.  On Monday, the New Jersey Supreme Court in O’Boyle v. Boro. of Longport, No. A-16-12, 2014 WL 355874 (N.J., July 21, 2014), expressly adopted this “common interest” rule (also often referred to as the “joint defense privilege”) so that parties to litigation in New Jersey can share privileged communications and information without the risk of destroying the underlying privilege.  Read More »

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