[*1]
| Nicholson v Keyspan Corp. |
| 2007 NY Slip Op 50083(U) [14 Misc 3d 1218(A)] |
| Decided on January 19, 2007 |
| Supreme Court, Suffolk County |
| Sgroi, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through January 31, 2007; it will not be published in the printed Official Reports. |
Supreme Court, Suffolk County
Robert V. Nicholson, Jeff Mattera, Donald Watson, Jack R. Meltzer, individually and on behalf of all others similarly situated, Plaintiffs,
against
Keyspan Corp., Keyspan Energy Corp., Keyspan Gas East Corp., Marketspan Corp., d/b/a Keyspan Energy and "John Does", Defendants.
|
17458-2006
REILLY, LIKE & TENETY, ESQS.
Attorney for the Plaintiffs
179 Little East Neck Road North
P.O. Box 818
Babylon, New York 11702
JOHN E. REILLY, ESQ.
Attorney for Defendants
175 East Old Country Road
Hicksville, New York 11801
Sandra L. Sgroi, J.
It is, ORDERED that the motion of the Plaintiffs to unseal certain records is decided as follows:
The attorneys for the parties are directed to appear for a conference to be held on March 29, 2007 at the John P. Cohalan Supreme Court Courthouse, Courttroom S23;
The Plaintiffs' request that the Defendants disclose a document dated December 27, 1993 is denied;
The Defendants are directed to prepare a privilege log and bates number the remaining documents that the Plaintiffs seek and which the Defendants allege are protected from discovery;
The Court will consider appointing a referee to supervise discovery pursuant to CPLR 3104 at the next conference and the attorneys for the parties should be prepared to address this at the next conference;
The attorneys for the Defendants shall report to the Court as to the time required to complete the bates numbering of the documents and the preparation of the privilege log; and
All other requested relief is denied.
The Plaintiffs herein seek damages and injunctive relief based upon the alleged migration of contaminants from a former manufactured gas plant owned by a predecessor of the companies of KeySpan and the Plaintiffs' exposure to these contaminants. The Plaintiffs in this case claim that the contamination resulted from coal tar that is a by product of a manufactured gas plant (hereinafter "MGP") located in Bay Shore. While Keyspan is the current owner of the Bay Shore MGP that is the source of the emissions, numerous other entities have owned the site prior to Keyspan including Mutual Gas Light Co, (1889-1892); Suffolk Gas Co. (1893-1897); Suffolk Gas and Electric Co. (1898-1916); and LILCO (1917-1998). According to the Defendants, KeySpan Energy Delivery-LI became the owner of the Bay Shore MGP in 1998. The Defendants, in other motions in this case, have submitted an affidavit from Theodore Leissing, the Project Manager in KeySpan's Environmental Asset Management Department assigned to the MGP project, who stated that the Bay Shore MGP was decommissioned and the gas generating equipment was demolished in the mid 1970's.
The Plaintiffs seek to unseal a document known as a "strategy paper" that is dated December 27, 1993 and to unseal other documents listed in a Keyspan privilege log prepared for a different litigation that was commenced in New York Supreme Court (bearing Index No. 604714-1997) if those documents contain information on the subject of manufactured gas plants, relevant to the issues in this matter. The 1993 "strategy paper" was prepared jointly by the Legal and Engineering Departments of the Long Island Lighting Company, (LILCO) and it was sealed by the Supreme Court, New York County, in an action between Long Island Lighting Company and Marketspan Corporation d/b/a Key Span Energy, as Plaintiffs, and Aetna Casualty & Surety Company, et. al. as Defendants, bearing Index No. 604714-1997.
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The Defendants oppose the Plaintiffs' motion and allege that the documents that the Plaintiffs seek are privileged and should not be disclosed through discovery. One of the documents that the Plaintiffs seek, which is dated December 26, 1993, is categorized by the Defendants as a "strategy paper" and the Defendants further allege that this document was held to be covered by attorney client privilege in Long Island Lighting Co. v. Allianz Underwriters Ins. Co., (301 AD2d 23, 749 NYS2d 488). This court agrees with the Defendants on this issue to the extent that the Appellate Division, First Department in Long Island Lighting Co. v. Allianz Underwriters Ins. Co. refused to vacate a decision of the Manhattan Supreme Court that the 1993 "strategy paper" was protected by attorney client privilege.
The action in New York County was commenced by LILCO against several insurance carriers that sold LILCO excess commercial general liability policies. LILCO commenced that action for the purpose of obtaining a declaration that these insurance companies were obligated to provide LILCO with a defense and indemnification in connection with LILCO's potential liability to remediate the environmental damage at various MGP sites, including the Bay Shore site. In that action, LILCO cross-moved for a protective order as to the "strategy paper" dated December 1993. This report, according to the Appellate Division, First Department in Long Island Lighting Co. v. Allianz Underwriters Ins. Co. (supra ) was:
coauthored by LILCO's Environmental Engineering Department and Legal Department, entitled "Manufactured Gas Plant Sites: Hempstead Gas Plant, Bay Shore Gas Plant—Investigation Summary and Remediation Strategy Recommendations" (hereinafter, together with its transmittal memorandum, the December 1993 Report). The December 1993 Report, which was marked "Privileged and Confidential—Attorney Work Product—Attorney-Client Communication," analyzed the federal and state statutory and regulatory framework relevant to MGP sites in New York, discussed the anticipated action of the regulatory agencies concerned, summarized the results of LILCO's investigation of the environmental damage at the two sites, set forth several remediation options for each site and the estimated cost of each option, and offered recommendations for the option to be implemented for each site and the strategy to be pursued in negotiations with the regulators. The recommendations made in the December 1993 Report were based on a combination of factors, legal as well as scientific and economic.
The trial court in that matter had denied LILCO's motion for a protective order holding that although the document would normally be protected by an attorney client privilege, that privilege had been waived because the document had been disclosed in a prior litigation. On appeal, the Appellate Division, First Department held that the right to assert the attorney client privilege had not been waived by LILCO because the prior disclosure was inadvertent, thus reversing the trial court on that issue.
Since that document has been held to be protected by an attorney client privilege, the Plaintiffs' motion, only to the extent that it seeks disclosure of that document, is denied.
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In addition to this 1993 document, the Plaintiffs seek other documents that the Defendants have refused to disclose to the Plaintiffs in this litigation. In the memorandum of law submitted by the Defendants in support of their refusal to disclose documents, it is alleged that the Plaintiffs do not specify the documents that the Plaintiffs seek to discover. However, the Court notes that the Plaintiffs have asked for all of the documents contained in the privilege log prepared in Long Island Lighting Co. v. Allianz Underwriters Ins. Co. to the extent that the documents are relevant to the contamination from the Bay Shore MGP.
The Defendants further allege that these undisclosed documents have been found to be privileged by the New York Supreme Court in the Long Island Lighting Co. v. Allianz Underwriters Ins. Co. action and that therefore the documents should not be disclosed. However, it is undisputed that the issue of privilege as it relates to these documents was not an issue in the Appellate Division decision referred to herein. The Defendants have not been able to provide the Court with any written order from the Supreme Court holding that these documents are privileged. The mere fact that the Plaintiffs and Defendants in an unrelated action stipulated to seal these documents, even if that agreement was sanctioned by the Court, does not require this Court to find that those documents should not be disclosed to different parties in a different action. Any other result would permit persons and corporations to secrete, hide and bury sensitive and potentially damaging information thus hindering or even preventing others from pursuing their rights to redress wrongs in our Courts . Such an effect would be chilling upon the rights not only of individuals but the public at large.
The Plaintiffs sought disclosure of the documents by service of a subpoena duces tecum. CPLR 3122(b) provides:Whenever a person is required pursuant to such a notice, subpoena duces tecum or order to produce documents for inspection, and where such person withholds one or more documents that appear to be within the category of the documents required by the notice, subpoena duces tecum or order to be produced, such person shall give notice to the party seeking the production and inspection of the documents that one or more such documents are being withheld. This notice shall indicate the legal ground for withholding each such document, and shall provide the following information as to each such document, unless the party withholding the document states that divulgence of such information would cause disclosure of the allegedly privileged information: (1) the type of document; (2) the general subject matter of the document; (3) the date of the document; and (4) such other information as is sufficient to identify the document for a subpoena duces tecum.
Before this Court can determine if the documents are privileged and not subject to disclosure, CPLR 3122 must be complied with by the Defendants and the documents should be bates stamped before the Court may proceed further. Since this Court is not aware of the volume of documents that must be reviewed, the Court directs that the attorneys appear for a conference at which the issues raised by this decision may be addressed. The Court further notes that in the action Long Island Lighting Co. v. Allianz Underwriters Ins. Co., a special referee was [*4]appointed to supervise discovery. The nature of this action requires that this Court address whether it would be more expeditious and in the interest of the parties to have a referee supervise the discovery process in this case. That issue will also be addressed at the conference.
The CPLR provides for full disclosure of all evidence material and necessary in the prosecution and defense of an action (CPLR 3101(a)). "New York has long favored open and far-reaching pretrial discovery" (DiMichel v. S. Buffalo Ry. Co., 80 NY2d 184, 193, 590 NYS2d 1, 604 NE2d 63, cert. denied sub nom Poole v. Conraip, 510 U.S. 816, 114 S.Ct. 68, 126 L.Ed.2d 37; Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952, 954, 683 NYS2d 156, 705 NE2d 1197), and the Courts of this State give this language a liberal interpretation to permit discovery of any facts bearing on the controversy in issue which will assist in a party's preparation for trial (see, Anonymous v. High School for Environmental Studies, 32 AD3d 353, 820 NYS2d 573).
The Court notes that CPLR 3101(c) makes the work product of attorneys absolutely immune from disclosure but material prepared for litigation, on the other hand, is granted only qualified immunity by CPLR 3101(d). Material prepared for litigation will be disclosed if there is a "substantial need of the materials in the preparation of the case and (the party) is unable without undue hardship to obtain the substantial equivalent of the materials by other means"(CPLR 3101(d)). The term attorneys' work product includes items such as "interviews, statements, memoranda, correspondence, briefs, mental impressions [and] personal beliefs' conducted, prepared or held by the attorney"(Kenford Co. v. County of Erie, 55 AD2d 466, 470, 390 NYS2d 715, 718, quoting Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451).
Once the issue of attorney client privilege is raised by a litigant, the party asserting the privilege has the burden of establishing it(see, Spectrum Sys. Intl. Corp. v. Chem. Bank, 78 NY2d 371, 377, 575 NYS2d 809, 581 NE2d 1055). Further, the burden of showing that materials were prepared solely for the purpose of litigation, and not in the course of ordinary business, falls upon the party seeking the protective order from the Court( see, Pepsico, Inc. v. Winterthur Int'l Am. Ins. Co., 13 AD3d 601, 786 NYS2d 356 app'l dism'd 4 NY3d 882, 798 NYS2d 726, 831 NE2d 971; Du Four v Blaw-Knox Corp., 89 AD2d 900, 454 NYS2d 12).
This Court recognizes that "whether a particular document is or is not protected by the attorney-client privilege or work product doctrine is necessarily a fact specific determination most often requiring in camera review." (Spectrum Systems Int'l Corp. v. Chemical Bank, 78 NY2d 371, 378, 581 NE2d 1055, 575 NYS2d 809). The Defendants should prepare a proper privilege log in order to permit the Court to conduct its in camera review of the documents. At a minimum, the log should specify the nature of the contents of the documents, who prepared the documents, the claimed privilege asserted by the Defendants and the specific basis for the claimed privilege, including information identifying the employment capacity of the individual who created the document, the particular litigation or case involved and the date that the document was created(see, Marte v. Brooklyn Hosp. Ctr., 9 AD3d 41, 779 NYS2d 82). All of [*5]the documents must be bate stamped in order to permit either this Court or the appointed referee to conduct a review of the documents to determine if the documents should be disclosed to the Plaintiffs or if a document may be disclosed after it is redacted (see, Anonymous v. High School for Environmental Studies, 32 AD3d 353, 820 NYS2d 573). If the attorney for the Defendants is claiming that the item should not be disclosed either because it is attorney work product or it was prepared for litigation, the factual specifics sufficient to meet the burden upon the party asserting the privilege must be stated in the privilege log with reference to the line and page of the document involved.
________________________Sandra L. Sgroi, J.S.C.