[*1]
Nicholson v Keyspan Corp.
2007 NY Slip Op 50329(U) [14 Misc 3d 1236(A)]
Decided on February 23, 2007
Supreme Court, Suffolk County
Sgroi, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on February 23, 2007
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, Newsday and News 12, Proposed Intervenors.




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

LEVINE, SULLIVAN, KOCH & SCHULZ, LLP

Attorneys for Newsday and News 12

321 West 44th St., Ste. 510

New York, New York

MCLANE, FRAF, RAULERSON & MIDDLETON, P.A.

BRUCE W. FELMLY, ESQ. (admitted Pro Hac Vice)

BARRY NEEDLEMAN, ESQ. (admitted Pro Hac Vice)

RACHEL A. HAMPE, ESQ.(admitted Pro Hac Vice)

900 Elm Street, P.O. Box 326

Manchester, New Hampshire 03105

Sandra L. Sgroi, J.

Upon the following papers numbered 1 to 11 read on this Motion to Intervene: Notice of Motion and supporting papers 1-8; Affirmation in opposition and supporting papers 9-10; Exhibit 11; it is,

ORDERED that the motion of Newsday and News 12 to intervene in this action is granted to the extent that these entities are permitted to intervene in this action for the limited purpose of addressing the order to show cause of the Defendants returnable on February 22, 2007 seeking injunctive and other relief against the Plaintiff, third parties and the Plaintiffs' attorneys; and it is further

ORDERED that the caption in this matter is deemed amended to reflect that Newsday and News 12 have intervened in this action to the extent provided by this order; and it is further

ORDERED that the attorneys for the intervenors are directed to serve a pleading defining the issues that they intend to address in this action within five (5) days of the date of this order.

Intervention is a procedure whereby an outsider not named in the action can become a party to a pending action on its own initiative (see, CPLR §§ 1012, 1013, 1014). Our Courts now liberally permit persons to intervene in an action pending in the Courts where they have a bona fide interest in an issue involved in that action (Siegel, New York Practice § 178 (4th ed.)). The [*2]Court notes that intervention as of right is permitted under CPLR 1012(a)(2), when representation by the existing parties "is or may be inadequate and the [proposed intervenor] is or may be bound by the judgment."

That is exactly the situation before this Court because the KeySpan Defendants seek to restrain Newsday and News 12 (hereinafter "the intervenors") from using documents that are in their possession. Therefore, the motion of the proposed intervenors is granted to the extent provided by this order. Although the intervenors are being granted permission to address certain issues of public concern raised herein, they must still file a pleading in this action and this order provides that the intervenors serve a pleading within five days of the date of this order (see, CPLR § 1014; Zehnder v. State, 266 AD2d 224, 697 NYS2d 347; Carriage Hill, Inc. v. Lane, 20 AD2d 914, 249 NYS2d 455). While some case law indicates that a motion to intervene may be denied if a proposed pleading is not attached to the moving papers, the limited and exigent purposes of intervenors' application require this Court to grant the application with the proviso that the pleading be served within five days.

In this civil action the Plaintiffs seek damages and injunctive relief against the KeySpan Defendants based upon the 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. This is a matter of public concern not only because of the effect of the plume on the health, safety and welfare of the persons directly affected by the plume, but because the financial costs involved in remediation of this plume of contaminants that may be borne by the ratepayers of KeySpan if those expenses are passed through to the utility's customers. The Plaintiffs have been vigorously represented by their counsel throughout the course of this litigation, and the Court has already addressed the issues concerning dismissal of the Complaint on Statute of Limitations grounds and discovery of alleged privileged documents in formal motion practice.

In one of those prior motions, the Plaintiffs sought to unseal a document known by various names but called herein a "strategy paper"[FN1] (this document 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 contained 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 [*3]the Appellate Division, First Department, 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 ( Long Island Lighting Co. v. Allianz Underwriters Ins. Co., 301 AD2d 23, 749 NYS2d 488). On January 19, 2007, this Court issued a decision that followed the Appellate Division, First Department decision that held that the 1993 "strategy paper" was protected by attorney client privilege (see, Nicholson et. al. v. Keyspan et. al., Index No. 17458-2006, motion sequence No. 004; see also, Long Island Lighting Co. v. Allianz Underwriters Ins. Co., supra ).

This 1993 strategy paper, according to the Appellate Division, First Department in Long Island Lighting Co. v. Allianz Underwriters Ins. Co. (supra ) was:

co-authored 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.


Although this Court previously found that the 1993 strategy report was protected by attorney client privilege, and that decision still stands, the Plaintiffs, apparently with the advice of counsel, have continued to disseminate that report along with other documents that may also be covered by attorney client privilege. The intervenors herein have been provided with copies of some if not all of these documents by persons apparently involved in this litigation and they seek permission of this Court to publish this information in a public forum. According to counsel for the intervenors:
Both Newsday and News 12 obtained copies of the documents some time ago through plaintiff's counsel, Irving Like, who I understand indicated at the time that the documents had also been made public during hearings on the proposed merger of KeySpan and another energy company.
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Since then both news organizations have engaged in their own newsgathering and reporting about them. The strategy Report, in particular, contains details about the nature and amount of contamination discovered in 1993 that apparently had not previously been the subject of published news reports. (affidavit of David A. Schulz dated February 13, 2007) .


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 and documents bearing on the controversy in issue which will assist in a party's preparation for trial as long as the documents sought are not protected from discovery (see, Anonymous v. High School for Environmental Studies, 32 AD3d 353, 820 NYS2d 573). Once non-privileged documents are disclosed, they are in the public forum unless the Court has issued a protective order or the parties have agreed not to disclose the documents.

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). It is possible that documents from the Defendants or Defendants' predecessors that the Court will review in camera as part of the discovery process may fall into one of these categories.



Once attorney client privilege or attorney work product is raised by a litigant to restrict disclosure, the party asserting that 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, in a previous decision, recognized 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). [*5]

This being said, and recognizing that there is a policy for full and liberal discovery of evidence in pre-trial disclosure, the Court is not unmindful that the attorney client privilege is an important tenet of this Country's jurisprudence and a cornerstone protection for the rights of its citizens. The Court in Prizel v. Karelsen, Karelsen, Lawrence & Nathan, 74 F.R.D. 134, 138 (S.D.NY 1977), quoting Judge Breitel in People v. Lynch, 23 NY2d 262, 296 NYS2d 327 (1968), stated:
[The attorney-client] ... privilege is of a high order. Perhaps as valuable as the privilege against self incrimination is the freedom of confidential communication between lawyer and client.'


In Spectrum Sys. Intern'l Corp. v. Chemical Bank, (78 NY2d 371, 575 NYS2d 809, 581 NE2d 1055), Chief Judge Kaye (then Associate Judge) stated the following:
The attorney-client privilege, the oldest among common-law evidentiary privileges, fosters the open dialogue between lawyer and client that is deemed essential to effective representation.


Further, among the various privileges recognized by our jurisprudence, the attorney-client privilege is the only one acknowledged by every State, although its scope varies by jurisdiction(see, 81 American Jurisprudence 2d Witnesses § 329). The Court will be guided by these principles throughout this litigation and it will carefully balance the competing interests of privilege and full disclosure in an attempt to obtain a fair and just result.

While this Court has found that the 1993 strategy paper is protected by attorney client privilege, as yet it has not been determined whether various other documents in this action are protected by a privilege, it has established the parameters of a procedure for the Plaintiffs and Defendants that would permit a review of those remaining documents. The intervenors have not requested any participation in this pretrial discovery process as part of their motion to intervene but have simply requested that they be heard on the issue of the issuance of any prior restraints on the intervenors divulging or disseminating the contents of "***documents that have been publicly available on the Internet for several weeks***" (Order to Show Cause, motion sequence #

005).

The subject matter of this litigation is of great public concern and the attorney client privilege exercised by the Defendants to restrict discovery will be narrowly and strictly construed to encourage full and fair disclosure of information that will affect the health, safety and welfare of the Plaintiffs in this action and the public at large. The intervenors, at this time, do not request intervention to participate in this discovery process but only request to intervene on the issue raised in motion sequence # [*6]

006 of the KeySpan Defendants seeking an order restraining them from publishing, divulging, or disseminating the contents of documents that have been available to the public on the Internet. The motion to intervene on that limited ground is granted.

Dated:________________________SANDRA L. SGROI, J. S. C.
Footnotes


Footnote 1:The Court has identified this document in the temporary restraining order signed in motion sequence #

006 as the "strategy paper" and therefore in an attempt to be consistent with that restraining order it has called that document the "strategy paper." It is the same document the Appellate Division is referring to in Long Island Lighting Co. v. Allianz Underwriters Ins. Co. (supra ).