In Commissioner of the Department of Planning and Natural Resources (DPNR) v Century Aluminum,2112 WL 314000  (D. VI 2012), a federal district court held that environmental reports prepared for defendants were not discoverable under the attorney work product doctrine.   The work product doctrine prevents discovery of facts known and opinions held by non-testifying experts who were retained in anticipation of litigation.  DPNR brought an action seeking compensation for damage to natural resources.  In response, defendant retained two marine biology consultants.  These consultants performed dives into the allegedly contaminated waters and recorded their observations.  In preparing for trial, plaintiff requested “scientific data and/or recorded observations” of these consultants.  Defendant refused to produce any documents in response to this request.

The court noted that the purpose of the work product doctrine is to protect the thought processes of attorneys and to prevent parties from obtaining a “free ride” on the investigative efforts of others.  The court noted that such reports are only discoverable under “exceptional circumstances” such as where the facts cannot be obtained by any other means and they are central to the case.  Here, the court found no such “exceptional circumstances,” as the court concluded that the observations in question did not relate to a critical time in the litigation.

What does this mean for environmental due diligence documents prepared for a transaction?  Probably not much.  It is not uncommon for a party preparing for a transaction to have the consultant retained by the attorney to try to protect the results from disclosure.  However, the Century Aluminum case did not involve a report prepared for an attorney handling a transaction.  The report at issue was prepared in anticipation of litigation.  The work product doctrine protects the attorney’s thought processes in preparation for litigation.  As such, the plaintiffs requested only data and observations, and did not attempt to obtain the entire report or the opinions of the consultant;  and the court held the data and observations were also protected.  A phase I site assessment prepared for a transaction (and not in anticipation of litigation) is not likely to be similarly protected.  Some portions of such reports may be protected by the attorney client privilege, which protects confidential communications between attorney and client.  A report prepared by a consultant for the attorney to assist the attorney in providing legal advice could thus be protected.  However, the attorney client privilege generally provides less protection than the work product doctrine.  Opinions and conclusions may be protected, but raw data may not be.  The relationship between the work product doctrine and the attorney client privilege in protecting environmental reports is addressed in Occidental Chemical Corp. v OHM Remediation Services, Corp. 175 FRD 421 (WDNY 1997) and Vermont Gas Systems, Inc. v United States Fidelity & Guaranty Co, 151 FRD 268 (D VT 1993).

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