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与顾问的沟通,即使没有特权,也可能受到保护

One of 的 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 的 Northern District of 印第安那州, 山谷伪造。诉Hartford Iron& Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), 的 Court found that communications between counsel and consultants retained by 的 counsel  were not protected by 的 attorney-client privilege, in large part because 的 consultants also performed remedial work.  However, as 的 work 是“与诉讼有关的”,其中包括: the 印第安那州 Department of Environmental Management (IDEM) and 环保局, substantive communications were protected by 的 attorney work product doctrine.  

被告Hartford Iron在印第安纳州经营废金属回收设施。 关于IDEM和EPA的某些执法行动,Hartford已与其保险公司原告谷伪造公司达成了两项和解协议。 第二份和解协议包括一些条款,根据这些条款,Forge Forge同意任命律师代表Hartford,并以新的顾问August 八月 Mack代替现有的环境顾问, 他设计并安装了雨水管理系统来部分解决 the issues raised by 的 enforcement actions.  The lawyer 在成为律师之前,Valley Forge任命的Jamie Dameron曾担任环境咨询地质学家。 

In 的 course of representing Hartford, Dameron discovered that 的 stormwater system was failing, resulting in 不遵守IDEM和Hartford之间订立的现有补救措施命令。  Thus, Dameron hired consultant Keramida to inspect and evaluate 的 故障和设计不当的系统,最终, Hartford retained Keramida将重新设计并监督替代品的建造 system, which was approved by 的 IDEM in connection with resolving  NOVs issued as a result of 的 failure of 的 first system.  A second consultant, CH2M, was retained, again by Dameron, to test and 的n excavate PCB impacted soils. 

In litigation between 的 Valley Forge and Hartford, Valley Forge sought communications between Dameron and Keramida and CH2M, disputing Dameron's claim of both 的 attorney-client privilege and 的 attorney work product protection.  In resolving 的 discovery dispute, and after an 在相机里 review of 的 documents at issue,  the Court held that, notwithstanding 的 fact that 的 consultants had been retained by Dameron, the communications were not protected by 的 attorney-client privilege because 的y  主要不涉及“legal assistance;” rather 的y related to environmental remediation at 的 Site.  The Court also opined that 的 privilege was not applicable because Dameron, at least with respect to 的 remediation, appeared to be acting more like an environmental consultant (which she has been) than an attorney, raising further doubt as to whether 的se communications truly involved legal assistance. 

On 的 other hand, 的 Court did find that substantive communications were protected by 的 attorney work product doctrine as 的 threat of litigation by IDEM and 环保局 were 的 driving force in 的 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 的 work product doctrine.  On 的 other hand, 的 Court noted that not all documents prepared during or in advance of litigation fall within 的 doctrine’s protection.  According to 的 Court, non-protected documents included transmittal letters and billing records.