December 1999

Evidentiary Issues Regarding Expert Witnesses

by R. Morgan Gilhuly

INTRODUCTION

From the very beginning of a case, when environmental experts are usually retained, it is important to have an understanding of how the law of attorney-client privilege and work product will apply to experts and consultants. Most litigators have a working knowledge of this law. We assume that we know enough to retain and prepare an expert witness without getting into trouble. But some litigators have gotten into trouble, deep trouble, as evidenced by the caselaw on the use of experts in environmental litigation. A little knowledge about this case law can help litigators to avoid the privilege problems that experts and consultants present.

This paper reviews that caselaw, particularly those cases involving privilege and work product, provides an examination of potential trouble spots and solutions, and a summary of key cases involving expert issues in environmental litigation.

The focus of this paper is on environmental cases because these cases are the most likely to interest environmental litigators, and also because it would be impossible in this limited space to review all of the cases involving experts, attorney-client privilege and work product. Surprisingly, there does not seem to be any ready collection of environmental expert cases. The cases described here should be a good starting point when researching an expert or consultant issue in an environmental case.

PRIVILEGE AND WORK PRODUCT

Both the attorney-client privilege and the work product doctrine may protect expert materials from discovery. However, the courts tend to construe these protections from discovery narrowly, more narrowly than most practitioners. Many cases hold that the attorney-client privilege and the work product doctrine must be construed narrowly so as not to impede "the search for truth." See, e.g., In re Grand Jury Matter, 147 F.R.D. 82, 84 (E.D. Pa. 1992) (privileges obstruct the truth-finding process and provide benefits that are at best indirect and speculative, and therefore must be strictly confined within the narrowest possible limits consistent with the logic of their principles); In re Pfohl Brothers Landfill Litigation, 175 F.R.D. 13, 21 (W.D.N.Y. 1997). But see also NL Industries, Inc. v. Commercial Union Ins. Co., 144 F.R.D. 225, 230 (D.N.J. 1992) (where the attorney-client privilege applies, it must be given as broad a scope as its rationale requires).

In all federal cases, even cases based on diversity jurisdiction, the work product doctrine is governed by federal law. FRCP 26(b)(3); Pfohl, 175 F.R.D. at 26. The rule with respect to attorney-client privilege, codified in Federal Rule of Evidence 501, is schizophrenic: In diversity cases, state law governs the privilege (presumably, whichever state’s law is applied to the substantive questions before the court, usually the law of the forum). In federal question cases, FRE 501 provides that the federal courts will apply the common law as interpreted by the federal courts. "In deriving the principles of federal common law which apply under Rule 501, the federal courts typically look to the state privilege law and follow its lead unless there is a strong federal policy to the contrary." Andritz, Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609, 632 (M.D. Pa. 1997). As a practical matter, this means that federal courts will look to state cases as a source of common law, but also to federal question cases from other jurisdictions interpreting the privilege.

In many environmental cases, there are both federal question claims (for example, CERCLA or RCRA claims) and state law tort claims (for example, negligence or nuisance) brought under the federal court’s pendent jurisdiction. In such cases, the courts apply federal common law, not state law. See United States v. Keystone Sanitation Co., 885 F. Supp. 672, 678 (M.D. Pa. 1994) ("when a federal and state claim are tried together in federal court, if claim of privilege is raised only in reference to the state claim, the federal law of privilege applies").

While in most cases there will be no distinction between state and federal law on any privilege question, it is always helpful to be able to distinguish an opponent’s cases as applying the wrong law on the subject.

Attorney-Client Privilege

Under the federal common law of attorney-client privilege, the party invoking it must prove:

1) the asserted holder of the privilege is or sought to become a client; 2) the person to whom the communication was made a) is a member of the bar of a court, or his subordinate and b) in connection with the communication is acting as a lawyer; 3) the communication relates to a fact of which the attorney was informed a) by his client b) without the presence of strangers c) for the purpose of securing primarily either i) an opinion on law or ii) legal services or iii) assistance in some legal proceeding, and not d) for the purpose of committing a crime or tort; and 4) the privilege has been a) claimed and b) not waived by the client.

Andritz, 174 F.R.D. at 632. See also U.S. Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 159 (E.D.N.Y. 1994), for a slightly more compact formulation incorporating the same elements. The party asserting the privilege has the burden of proving each element of the privilege. Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431, 436 (W.D.N.Y. 1997); Pfohl, 175 F.R.D. at 20.

The attorney-client privilege applies to communications from the attorney to the client, and vise versa. Westinghouse v. Republic of the Philippines, 951 F.2d 1414, 1423 (3rd Cir. 1991).

It also applies to agents of the attorney where disclosure is necessary to assist the attorney in providing legal services. "The attorney-client privilege may cover ‘communications made to agents of an attorney . . . hired to assist in the rendition of legal services.’" Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431, 436 (W.D.N.Y. 1997) (citing United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir.1989), cert. denied, 502 U.S. 810, 112 S.Ct. 55, 116 L.Ed.2d 31 (1991)). "Disclosure to agents retained by counsel to assist him or her in advising the client and handling legal matters does not operate as a waiver. The privilege attaches to agents and representatives of counsel whose services are necessary for effective representation of the client's interests." Andritz, 174 F.R.D. at 632.

Thus, "’the attorney-client privilege can attach to reports of third parties made at the request of the attorney or the client where the purpose of the report was to put in usable form information obtained from the client.’" Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431, 436 (W.D.N.Y. 1997) (citing Federal Trade Commission v. TRW, Inc., 628 F.2d 207, 212 (D.C.Cir.1980) and United States v. Kovel, 296 F.2d 918 (2d Cir.1961)).

The privilege attaches to the communication itself, not to facts that may be contained in the communication. "Facts gathered by counsel in the course of investigating a claim or preparing for trial are not privileged and must be divulged if requested in the course of proper discovery." Andritz, 174 F.R.D. at 632 (citing Upjohn Co. v. United States, 449 U.S. 383, 395-96, 101 S. Ct. 677 (1981)).

In environmental cases, the names of witnesses, technical data, the results of studies, investigations and testing to be used at trial, and other factual information are not privileged. Andritz, 174 F.R.D. at 632 (citing Protective National Insurance Company of Omaha v. Commonwealth Insurance Company, 137 F.R.D. 267, 281 and 284 (D. Neb. 1989)).

Moreover, in general, communications with an outside consultant engaged in remediation will not be subject to the attorney-client privilege. See United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156 (E.D.N.Y. 1994). In Phelps Dodge, the Postal Service moved to compel production of communications between two of defendant’s remediation consultants and defendant and defendant’s counsel. The court held that the communications were not covered by the attorney-client privilege. The court relied on the seminal decision in United States v. Kovel, 296 F.2d 918 (2d Cir.1961), in which Judge Friendly ruled that "the attorney-client privilege can attach to reports of third parties made at the request of the attorney or the client where the purpose of the report was to put in usable form information obtained from the client." Federal Trade Comm'n v. TRW, Inc., 628 F.2d 207, 212 (D.C.Cir.1980).

The consultants in Phelps Dodge, however, were not hired to interpret client confidences, but rather to prepare a remediation plan and to oversee remedial work. "Their function was not to put information gained from defendants into usable form for their attorneys to render legal advice, but rather, to collect information not obtainable directly from defendants." 852 F. Supp. at 161.

Noting that "[c]ourts that have considered the application of the attorney-client privilege to independent outside consultants have been cautious in extending its application," 852 F. Supp. at 161, the court held that the claim in this case was beyond the "outer boundary" of the privilege. The consultants based their opinions on factual and scientific data that they collected, not client confidences. "Such underlying factual data can never be protected by the attorney-client privilege and neither can the resulting opinions and recommendations. There are few, if any, conceivable circumstances where a scientist or engineer employed to gather data should be considered an agent within the scope of the privilege since the information collected will generally be factual, obtained from sources other than the client." 852 F. Supp. at 162.

Work Product

The work product doctrine stems from the Supreme Court’s decision in Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385 (1947). Now codified in Federal Rule of Civil Procedure 26(b)(3), the work product doctrine is intended to "establish a zone of privacy for the attorney in planning litigation strategy and to prevent an adverse party from ‘piggy-backing’ on such attorney’s trial preparation work product." Pfohl, 175 F.R.D. at 26.

To be protected from discovery, work product must be "(1) a document or tangible thing, (2) that was prepared in anticipation of litigation and (3) was prepared by or for a party, or by or for his representative." In re Grand Jury Subpoenas, 561 F. Supp. 1247, 1257 (E.D.N.Y. 1982).

There are two types of work product and two levels of protection from discovery. "Fact work product" contains only factual information. "Opinion work product" contains the opinions, mental impressions, and strategy of the attorney. While some judges seem to give scant protection to purely factual material when work product protection is claimed, "a purely factual document is not precluded from qualifying as work product that was prepared in anticipation of litigation." Maertin v. Armstrong World Indus., Inc., 172 F.R.D. 143, 150 (D.N.J. 1997). To obtain discovery of fact work product, the opposing party must show a "substantial need" – that is, that the information is necessary and cannot reasonably be obtained from another source. However, the mere desire to verify that other information available to the requesting party is accurate does not qualify as a substantial need. Chem Nuclear Systems, Inc. v. Arivec Chemicals, Inc., 978 F. Supp 1105, 1107-08 (N.D. Ga. 1997).

While it is often said that the work product doctrine protects only documents, not facts, that is not entirely true. "Although the attorney-client privilege extends only to communications and not underlying facts which may be communicated, the work product doctrine may extend to protect from disclosure certain factual information sought" in discovery. In re Pfohl Brothers Landfill Litigation, 175 F.R.D. at 26; Fed. R. Civ. P. 26(b)(3). In Pfohl for example, the court held that data obtained from certain environmental samples taken at the plaintiffs’ allegedly contaminated residences was protected from discovery by the work product doctrine. 175 F.R.D. at 30. Similarly, In Horan v. Sun Company, Inc., 152 F.R.D. 437, 439 (D.R.I. 1993), defendant served an interrogatory seeking "the results" of environmental investigation by plaintiff’s consultant, not the consultant’s report. The court ordered plaintiff to produce the information, but only on defendant’s showing of substantial need. 152 F.R.D. at 439.

Note that there is no requirement that work product be the work product of an attorney – work product "prepared by or for a party" is also protected. See Briggs & Stratton v. Concrete Sales & Services, 174 F.R.D. 506, 508 (M.D. Ga. 1997); Maertin v. Armstrong World Indus., Inc., 172 F.R.D. 143, 151 (D.N.J. 1997); see also Federal Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 25 103 S. Ct. 2209, 2213 (1983). Nevertheless, I found some instances where courts denied work product protection simply because the work product was not prepared by an attorney. See, e.g., Pfohl, 175 F.R.D. at 27 ("If any notes were taken by Plaintiffs at the . . . meeting they would not qualify as attorney work product because they were not prepared by Plaintiffs’ attorneys or any agent of Plaintiffs’ attorneys.").

Work product must be prepared in anticipation of litigation in order to be protected from discovery. While most practitioners interpret this requirement liberally to protect their own work product, the courts are not always so liberal. "[L]itigation must be a real possibility at the time of preparation or . . . the document must be prepared with an eye to some specific litigation." Pfohl, 175 F.R.D. at 27 (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 143 (D. Del. 1982)). There must be "proof of ‘objective facts establishing an identifiable resolve to litigate.’" Id. (quoting Janicker v. George Washington University, 94 F.R.D. 648, 650 (D.D.C. 1982)).

Other courts are less restrictive. "’[L]itigation need not be imminent . . . as long as the primary motivating purpose behind the creation of the documents was to aid in possible future litigation.’" Maertin v. Armstrong World Indus., Inc., 172 F.R.D. 143, 148 (D.N.J. 1997) (quoting United States v. Rockwell Int’l, 897 F.2d 1255, 1266 (3rd Cir. 1990)).

A few courts have set forth bright-line rules for deciding when litigation is imminent and work product is protected. In In re Pfohl Bros. Landfill Litigation, plaintiffs claimed a certain date as the "federally required commencement date" of the statute of limitations under CERCLA Section 158, 42 U.S.C. § 9658. This date represented the date plaintiffs’ claimed they "knew or should have known" of the facts supporting their claims. The court held that no document prepared before the federally required commencement date, even by plaintiffs’ attorneys, could be protected by the work product doctrine. If it was prepared by the attorney before that date, it was prepared without a client and therefore without the prospect of litigation.

In Briggs & Stratton v. Concrete Sales & Services, 174 F.R.D. 506, 509 (M.D. Ga. 1997), Briggs & Stratton conducted an investigation pursuant to an EPA order under CERCLA Section 106. Briggs claimed that documents prepared by its consultants during that investigation constituted work product, and the court upheld the claim. The court found that "in situations involving environmental cleanups the strong prospect of future litigation arises at the time potentially responsible parties are identified."

NL Industries, Inc. v. Commercial Union Ins. Co., 144 F.R.D. 225, 231 (D.N.J. 1992) applied a similar bright-line rule, holding that when an insurance carrier has denied coverage, the insured is put on notice that it must sue in order to obtain coverage. "Any materials prepared afterwards, therefore, are done so in anticipation of litigation pertaining to coverage, and with the expectation that they will be privileged." Id.

Protected work product will not lose its protection in subsequent litigation related to the same or similar subject matter. The work product doctrine protects materials prepared in anticipation of a previous litigation. Federal Trade Comm’n v. Grolier, Inc., 462 U.S. 19, 25 103 S. Ct. 2209, 2213 (1983).

However, even when a consultant begins its work in anticipation of litigation, work product protection may be lost if the prospect of litigation is reduced or eliminated. In Metro Wastewater Reclamation Dist. v. Continental Cas. Co., 142 F.R.D. 471, 477-78 (D. Colo. 1992), Metro claimed work product protection for reports prepared by its consultants after settlement with EPA and the issuance of a consent decree. The court overruled Metro’s claim in part on the grounds that once Metro had settled with EPA, there was no longer an identifiable prospect of litigation.

In general, where a party has hired a remediation contractor to investigate and remediate a site, the courts will look with disfavor on any argument that documents generated by that work are prepared in anticipation of litigation.

In the context of environmental claims, factual reports and compilations, such as the documentation of activities by experts or consultants carried out for the purpose of preparing a waste management or remedial plan to be submitted to federal or state regulatory authorities, tables compiled from testing done to determine the contaminants present at the site, proposed methods of remediation, or summaries of meetings, communications, or telephone conversations between state or federal regulatory authorities and expert consultants, or between the alleged violator and the authorities, are not protected from disclosure as work product.

Andritz, 174 F.R.D. at 634 (citing In re Grand Jury Matter, 147 F.R.D. 82 (E.D. Pa. 1992)). See also NL Industries, Inc. v. Commercial Union Ins. Co., 144 F.R.D. 225, 233 (D.N.J. 1992) ("materials which have been held to be discoverable by other courts, and what has already been discovered in this case are documents relating to incidents of spills and leaks, testing reports and samples prepared by environmental consultants").

But see Bituminous Casualty Corp. v. Tonka Corp., 140 F.R.D. 381 (D. Minn. 1992) (upholding work product protection for, among other things, drafts of a consultant's report).

Retrospective efforts to assert work product or attorney-client privilege protection over remedial activities seem to be particularly ineffective. Of course, the work product doctrine will not protect documents created by a consultant hired to investigate or remediate a site, and who has not been retained to assist in litigation, regardless whether the consultant communicates with attorneys. In Occidental Chemical Corp. v. OHM Remediation Services Corp., 175 F.R.D. 431, 437 (W.D.N.Y. 1997), Rust was hired as an engineering consultant to assist with the design and development of a remediation plan, and later to consult regarding the actual performance of remediation. Plaintiff sought to protect Rust's documents from discovery as work product and as attorney-client privileged communications. The court held that Rust was hired before litigation was imminent, plaintiff failed to demonstrate that Rust was hired for a litigation purpose, that the documents contained information that plaintiff would be expected to compile in the ordinary course of its business, and that plaintiff had put the Rust documents at issue by suing over the environmental condition of the site, which was described in Rust’s documents. 175 F.R.D. at 435-36. The court ordered production of all of the remediation consultant’s documents.

THE PROBLEM AREAS AND HOW TO AVOID THEM

The Two-Hat Expert

The problem

In litigation, counsel often need two consultants: a confidential consultant to aid in developing the case, and a remediation consultant to perform work at the site. Any attorney considering using one consultant for both remediation and litigation support – or if an opposing attorney does so – will face the question whether the work of a consultant wearing these "two hats" is protected from discovery by the attorney-client privilege or the work product doctrine.

Suppose that a landowner discovers soil and groundwater contamination on its property. Either the landowner or its attorney (if one is involved at this early stage) will likely be required to hire a remediation contractor to respond to the local regulatory authorities. When these authorities require the landowner to define the extent of the contamination, that will require an environmental consultant.

This consultant is not, at least initially, hired for a litigation purpose. He or she is hired because the law requires the landowner to perform an investigation. The consultant must file its reports with the regulatory authorities, where they will be considered public documents. Because the consultant is not hired primarily for a litigation purpose, and because its reports are public, the work product doctrine will not protect the consultant's work from discovery in later litigation.

If the landowner later files a cost recovery action, however, the landowner's attorney may well need a confidential consultant. Can the attorney use the landowner's remediation consultant as a confidential consultant?

While there is some danger in retaining an expert to wear two hats – to be both remediation consultant and confidential consultant – the case law indicates that it can be done provided that counsel plan ahead and document the "two hats" relationship from the first day of working with the consultant.

There are a handful of cases holding that the attorney-client privilege and work product protection for a particular consultant's work is not lost even though the consultant may at different times have performed confidential and non-confidential functions. For example, in Brookfield-North Riverside Water Comm'n v. Martin Oil Marketing, Ltd., No. 90-C-5884, 1992 WL 147925 (N.D. Ill. June 10, 1992), Martin Oil's consultant removed underground tanks, and then later became a litigation consultant. The court held that documents produced by and sent to the consultant after removal of the tanks retained their work-product protection, even though the consultant was a fact witness concerning the tank excavation. Plaintiff could not show substantial need for discovery from the consultant because plaintiff had access to the same or similar information regarding the tank pull.

In Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984 (D.C. Cir. 1980), the plaintiff sought discovery from defendant's litigation consultant who had previously been engaged as a general business consultant. The court held that plaintiff was not entitled to discovery from the expert because although the consultant was familiar with the client's business, the consultant didn't know anything about the matters at issue in the case before his retention as a litigation consultant, and everything thereafter was protected from discovery.

In Inspiration Consolidated Copper Co. v. Lumbermens Mutual Casualty Co., 60 F.R.D. 205 (S.D.N.Y. 1973), for example, Price Waterhouse had three consultant roles. It acted as (1) regular auditor, (2) litigation consultant with respect to certain claims, and (3) potential testifying expert on a different claim. The court denied discovery of Price Waterhouse's activities as a litigation consultant "as a matter of discretion." Id. at 210.

In Bituminous Casualty Corp. v. Tonka Corp., 140 F.R.D. 381 (D. Minn. 1992), Tonka retained Barr to investigate contamination on its site. Tonka submitted Barr's reports to the state, and later to Tonka's insurers in coverage litigation. The Bituminous court upheld Tonka's assertion of work-product protection for documents produced and reviewed by Barr, including drafts of Barr's reports.

In a slightly different "two hats" case, BCF Oil Refining v. Consolidated Edison Co., 171 F.R.D. 57 (S.D.N.Y. 1997), plaintiff hired a consultant/expert to act as both confidential consultant on some matters, and as an expert witness. The court held that any materials that the expert referred to or generated that were related solely to the consulting assignment need not be produced, but it warned that the court would resolve any ambiguity in the consultant’s role against plaintiff. In fact, the court ordered production of numerous documents which plaintiff claimed related solely to the consultant role.

If counsel decide to retain an expert to wear two hats, what should be done to maintain the attorney-client privilege and work product protection? Magistrate Brazil of the Northern District of California has addressed precisely this question in two opinions, one published and one unpublished.

In McCaugherty v. Sifferman, 132 F.R.D. 234 (N.D. Cal. 1990), the court was examining whether communications with consultants were protected by the attorney-client privilege. The McCaugherty court notes that no communication or document is privileged if it would have been made for a business purpose:

No privilege can attach to any communication as to which a business purpose would have served as a sufficient cause, i.e., any communication that would have been made because of a business purpose, even if there had been no perceived additional interest in securing legal advice. Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569 (1975).
Id. at 238.

The McCaugherty court, therefore, required defendants to prove that: (1) the primary purpose of the document or communication was to seek or provide legal advice or services; and (2) the document or communication was transmitted in confidence. Id. at 248.

The McCaugherty court seems to indicate that it would apply a similar test to determine if the work-product doctrine should apply, although the first requirement would be that the document was prepared primarily in anticipation of litigation. Id. at 246 ("defendants have not pointed to a single document on their log that they claim was generated primarily for use in" litigation).

Three years later, in City of Richmond v. United States, No. C-89-2935 DLJ (Nov. 18, 1993), an unpublished order in an environmental cost-recovery case, the same court considered the same question in the work product context. In Richmond, Harding Lawson Associates acted as both a litigation consultant to the City and as a remediation consultant. A defendant subpoenaed HLA's files. HLA and the City refused to produce them on the grounds that they were protected from discovery by the attorney-client privilege and the work product doctrine.

The Richmond opinion notes that the party opposing discovery has the burden to show that the dominant purpose of any communication was to give or to help secure legal advice, or that the document was prepared in anticipation of litigation. Slip op. at 3. But, the court adds, because of the consultant's dual roles, that burden is "greater than usual." Id. The objecting party must also show that each claimed privileged communication was "clearly identified and segregated from unprivileged communications" and "treated with sufficient care to protect its confidentiality." Id. The Richmond court ordered the City to prepare a detailed privilege log and declarations showing that the City had complied with these requirements.

Solutions

The McCaugherty and Richmond opinions indicate that in order to maintain privilege and work product protection for communications with a consultant who may also perform unprotected work such as remediation and the preparation of unprivileged reports, one must take steps to identify and segregate confidential communications and protect them from disclosure. Here are a few suggested steps:

• Write separate engagement letters for your consultant, one dealing with the confidential assignment, and the other with non-confidential matters. You may have to disclose the engagement letters to prove the terms of the two engagements, so keep that in mind when drafting them.
• The consultant (not just the attorney) must understand from the outset that confidential communications and documents must be segregated from non-confidential files and kept confidential. It is the consultant’s intent that the court will examine.
• Require the consultant to keep separate files and account numbers for the confidential matter and the non-confidential matter, and to bill separately.
• Clearly identify all correspondence and transmittals as pertaining to the confidential matter or the non-confidential matter. Mark all correspondence regarding the confidential consultations as "Confidential" and specify the applicable privileges.

Materials Provided To The Expert

In general, once an expert has been designated to testify in litigation, his opinion and all of the bases for that opinion are discoverable. See FRCP 26. In California, there is some authority that materials related to drafting of pleadings and litigation strategy are not discoverable, even once the expert is disclosed, but few practitioners rely on this authority and attempt to withhold materials provided to the potential expert witness. Since the expert will be questioned at trial, any evidence that the expert has materials which he or she is unwilling to disclose may be used as evidence of bias.

BCF Oil Refining v. Consolidated Edison Co., 171 F.R.D. 57 (S.D.N.Y. 1997), provides an excellent analysis of various types of expert-related documents and whether they are subject to discovery. In BCF, defendant Con Ed moved to compel production of 50 documents falling into five categories. The court made the following rulings:

Documents unrelated to the expert’s testimony or report. The court found that the expert’s invoices and documents related to the expert’s role as a consultant advising plaintiff’s counsel need not be produced. Plaintiff retained the expert not only as a witness but also as a technical consultant "whom plaintiff used in order to conduct depositions of adverse parties, formulate discovery requests, and perform similar tasks which required expertise of a technical nature." 171 F.R.D. at 61. The court held that "documents having no relation to the expert's role as an expert need not be produced but that any ambiguity as to the role played by the expert when reviewing or generating documents should be resolved in favor of the party seeking discovery." 171 F.R.D. at 62. Based on in camera review, the court found that some documents related only to the expert/consultant’s role advising regarding document requests and deposition preparation and need not be produced. Many other documents that plaintiff contended were related only to the consulting relationship, however, were ordered produced.

See also the discussion of the Two Hat Expert above.

Documents generated by the expert in his role as expert witness. These documents the court, of course, ordered produced. This category included drafts of memoranda and reports that the expert had prepared, even those that plaintiff argued were related only to the consulting relationship. The court concluded in essence that anything generated by the expert in his role as expert witness was not work product: "[T]here are numerous cases both within the Second Circuit and outside of it which have held that documents generated by experts are not work product within the meaning of Rule 26(b)(3)." 171 F.R.D. at 62 (citing Beverage Marketing v. Ogilvy & Mather Direct Response, Inc., 563 F. Supp. 1013, 1013-15 (S.D.N.Y. 1983); Quadrini v. Sikorsky Aircraft, 74 F.R.D. 594 (D. Conn. 1977); County of Suffolk v. Long Island Lighting Co., 122 F.R.D. 120, 122-23 (E.D.N.Y. 1988); Hewlett-Packard Co. v. Bausch & Lomb, 116 F.R.D. 533, 536 (N.D. Cal. 1987) ("It is quite clear that Rule 26 does not include within the definition of 'work product' documents generated or consulted by experts in connection with litigation.")).

Documents containing data provided by counsel to the expert for review, but not counsel’s mental impressions or opinions. This information is also of course discoverable. In addition to the considerable caselaw on the issue, the court cited the amended text of FRCP 26(a)(2), which requires the expert report to include "data or other information considered by the witness . . . ." As the BCF court noted, "It would strain credulity to maintain that the Rule somehow exempts factual information that counsel gave the expert." 171 F.R.D. at 63.

Documents containing counsel’s mental impressions and opinions. Prior to the amendment of FRCP 26 in 1993, there was a split of authority regarding the discoverability of opinion work product provided to an expert. Bogosian v. Gulf Oil Corp., 738 F.2d 587, 595 (3d Cir.1984), held that any opinion work product generated by an attorney was shielded from discovery even if given to the party's expert. See also North Carolina Elec. Membership Corp. v. Carolina Power & Light Co., 108 F.R.D. 283, 286 (M.D.N.C. 1985); Hamel v. General Motors Corp., 128 F.R.D. 281, 282-83 (D. Kan. 1989); Dominguez v. Syntex Laboratories, 149 F.R.D. 158 (S.D. Ind. 1993).

On the other hand, a number of district court cases held that information, even opinion work product, provided to an expert was automatically discoverable. See, e.g., Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 392 (N.D. Cal. 1991) (holding after review of policies supporting FRCP 26(b) that communications from counsel to a testifying expert are discoverable if they relate to matters about which the expert will testify). See also BCF, 171 F.R.D. at 64-65 (citing cases). Still other cases attempted to balance the policy of liberal discovery of the bases of expert opinions against the policy codified in FRCP 26(b)(3) protecting opinion work product. See BCF, 171 F.R.D. at 65 (citing Occulto v. Adamar, 125 F.R.D. 611, 615 (D.N.J. 1989) (draft of expert report which appeared to have been written entirely by attorney discoverable); SiLite v. Creative Bath Prods., Inc., 1993 WL 384562 (N.D. Ill. 1993) ("disclosure to the expert does not result in the automatic waiver of privileges, but it does normally lead to discovery unless the information is clearly the attorney's mental processes and clearly could not have influenced the expert.").

FRCP 26 was amended in 1993 to require an expert report, "a complete statement of all opinions to be expressed and the basis and reasons therefor" and "the data or other information considered by the witness in forming the opinions . . . ." FRCP 26(a)(2). This amendment led the BCF court to require production of any opinion work product provided to the expert, since such material is "considered" by the expert. 171 F.R.D. at 66 (citing Karn v. Rand, 168 F.R.D. 633 (N.D. Ind. 1996). In addition, the BCF court quoted this portion of the Advisory Committee Notes to the 1993 amendments, which seems to support disclosure of opinion work product:

The report is to disclose the data and other information considered by the expert and any exhibits or charts that summarize or support the expert's opinions. Given this obligation of disclosure, litigants should no longer be able to argue that materials furnished to their experts to be used in forming their opinions – whether or not ultimately relied upon by the expert – are privileged or otherwise protected from disclosure when such persons are testifying or being deposed.

Advisory Committee Notes, 1993 Amendment (emphasis supplied); see BCF, 171 F.R.D. at 66. Based on this authority, BCF ordered discovery of opinion work product disclosed to the expert, including documents that contained the litigation strategies of plaintiffs’ attorneys.

Interestingly, despite the Advisory Committee Notes, there is at least one (non-environmental) case that holds, even after the 1993 amendments to FRCP 26, that opinion work product disclosed to an expert witness is not discoverable. Haworth v. Miller, 162 F.R.D. 289, 295 (W.D. Mich. 1995).

Counsel’s notes regarding conversations with the expert that were never shown to the expert. Not surprisingly, the BCF court concluded that counsel’s notes, not shown to the expert, retained their work product protection, and were not discoverable. The court noted, however, that conversations with an expert are discoverable, and that therefore there would appear to be good reason to allow discovery of notes recording those conversations. 171 F.R.D. at 67. But, the court decided, such notes were not "considered" by the expert in preparing his opinion, and the policies mandating "special protection" of opinion work product required protection of the notes.

Hiring A Former Employee/Fact Witness As A Consultant Expert

In many instances, former employees have valuable information necessary to their former employer in litigation. The employees, however, may have new jobs, new lives, and may not be eager to assist their former employer in litigation, particularly those employees who left the company under unhappy circumstances. In such cases, counsel may wish to hire the former employee as a consultant to assist in the defense of the client. There is nothing per se improper about such an arrangement, but it may raise difficult ethical issues.

In State of New York v. Solvent Chemical Co., Inc., 166 F.R.D. 284 (W.D.N.Y. 1996), defendant ICC hired its own former employee, Beu, as a consultant after Beu had been subpoenaed to give deposition testimony. ICC not only agreed to pay Beu a salary and expenses, but also settled claims ICC’s subsidiary had brought against Beu in other litigation, and agreed to indemnify Beu. The court held that "the conduct of ICC [and its] counsel in relation to Mr. Beu has threatened to undermine the integrity of the adversary process in this case." 166 F.R.D. at 289.

The Solvent Chemical court acknowledged that there was nothing improper in hiring a fact witness as a consultant (citing Barrett Industrial Trucks, Inc. v. Old Republic Ins. Co., 129 F.R.D. 515 (N.D. Ill. 1990) and In re Gulf Oil/Cities Service Tender Offer Litigation, 1990 WL 108352 (S.D.N.Y. 1990)), but found that "in providing Mr. Beu with protection from liability . . . as a means of obtaining his cooperation as a fact witness, ICC . . . went too far." 166 F.R.D. at 290. The court held that none of the documents associated with Beu’s work was protected by the work product doctrine.

The Solvent Chemical case shows the perils of paying a fact witness for testimony, even if it is under an expert consultant arrangement. To avoid the problems that arose in the Solvent Chemical case, such arrangements should be limited to reasonable payments for time and expenses incurred.

Drafts

Occasionally, a party will claim privilege protection for drafts of environmental reports reviewed and edited by an attorney in the process of preparing the reports for submission to an agency. The issue that naturally arises is that any edits made by the attorney could not have been intended to be confidential because the report was destined for submission to a public agency. But what about suggested text that is not incorporated into the final document? There is some authority that such suggested text is not discoverable: "[d]rafts of documents prepared by counsel or circulated to counsel for comments on legal issues are considered privileged if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version." Andritz, 174 F.R.D. at 633 (citing Allegheny Ludlum Corp. v. Nippon Steel Corp., 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144 at *5 (E.D. Pa. Apr. 15, 1991)). See also Bituminous Casualty Corp. v. Tonka Corp., 140 F.R.D. 381 (D. Minn. 1992) (holding drafts protected from discovery).

CASE SUMMARIES

Andritz Sprout-Bauer, Inc. v. Beazer East, Inc., 174 F.R.D. 609 (M.D. Pa. 1997).

Plaintiff Andritz hired environmental consultants to assist in investigation and cleanup of two sites in Pennsylvania. Defendant Beazer, one of the former owners of the sites, moved to compel production of the consultants’ documents, including drafts of reports submitted to environmental agencies. Andritz asserted claims of attorney client privilege, work product, "common interest doctrine" and self-critical analysis privilege.

Attorney-client privilege

The burden of establishing a privilege is on the party invoking it. 174 F.R.D. at 632.

Privileges are not expansively construed, because they necessarily impinge on the production of relevant evidence. 174 F.R.D. at 632.

In federal question cases, the privilege of a witness is determined by the principles of the common law as interpreted by the courts of the United States. In diversity cases, privilege is determined under state law. FRE 501. "In deriving the principles of federal common law which apply under Rule 501, the federal courts typically look to the state privilege law and follow its lead unless there is a strong federal policy to the contrary." 174 F.R.D. at 632.

"Under the federal common law of attorney client privilege, the party invoking it must prove: 1) the asserted holder of the privilege is or sought to become a client; 2) the person to whom the communication was made a) is a member of the bar of a court, or his subordinate and b) in connection with the communication is acting as a lawyer; 3) the communication relates to a fact of which the attorney was informed a) by his client b) without the presence of strangers c) for the purpose of securing primarily either i) an opinion on law or ii) legal services or iii) assistance in some legal proceeding, and not d) for the purpose of committing a crime or tort; and 4) the privilege has been a) claimed and b) not waived by the client. 174 F.R.D. at 632.

"Disclosure to agents retained by counsel to assist him or her in advising the client and handling legal matters does not operate as a waiver. The privilege attaches to agents and representatives of counsel whose services are necessary for effective representation of the client's interests." 174 F.R.D. at 632.

"Opposing counsel is entitled to obtain through discovery the names of witnesses, facts underlying the cause of action, technical data, the results of studies, investigations and testing to be used at trial, and other factual information." 174 F.R.D. at 632.

"To the extent that purely factual material can be extracted from privileged documents without divulging privileged communications, such information is obtainable." 174 F.R.D. at 633.

"What would otherwise be routine, non-privileged communications between corporate officers or employees transacting the general business of the company do not attain privileged status solely because in-house or outside counsel is ‘copied in’ on correspondence or memoranda." 174 F.R.D. at 633 (citing United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156, 163-64 (E.D.N.Y. 1994).

"Drafts of documents prepared by counsel or circulated to counsel for comments on legal issues are considered privileged if they were prepared or circulated for the purpose of giving or obtaining legal advice and contain information or comments not included in the final version." 174 F.R.D. at 633 (citing Allegheny Ludlum Corp. v. Nippon Steel Corp., 1991 U.S. Dist. LEXIS 5173, 1991 WL 61144 at *5 (E.D.Pa. Apr. 15, 1991)).

Work Product

"In the context of environmental claims, factual reports and compilations, such as the documentation of activities by experts or consultants carried out for the purpose of preparing a waste management or remedial plan to be submitted to federal or state regulatory authorities, tables compiled from testing done to determine the contaminants present at the site, proposed methods of remediation, or summaries of meetings, communications, or telephone conversations between state or federal regulatory authorities and expert consultants, or between the alleged violator and the authorities, are not protected from disclosure as work product." 174 F.R.D. at 634 (citing In re Grand Jury Matter, 147 F.R.D. 82 (E.D. Pa. 1992).

The case also has extensive and well-researched discussions of the application of Meghrig v. KFC Western, Inc., 116 S. Ct. 1251 (1996), to claims for future remediation costs; common law claims by a current owner against former owners; and a party’s attempt to "dump" documents in response to a request for production.

BCF Oil Refining v. Consolidated Edison Co., 171 F.R.D. 57 (S.D.N.Y. 1997)

In BCF, plaintiff sued Con Ed and others for delivering contaminated oil to plaintiff. Con Ed moved to compel production of 50 documents, all of which concerned communications with plaintiff’s expert and a subcontractor. The court divided the documents into five categories. The court’s rulings are described in Materials Provided to the Expert above.

Bituminous Casualty Corp. v. Tonka Corp., 140 F.R.D. 381 (D. Minn. 1992)

Summarized in text in Two-Hat Expert, above.

Brookfield-North Riverside Water Comm'n v. Martin Oil Marketing, Ltd., No. 90-C-5884, 1992 WL 147925 (N.D. Ill. June 10, 1992)

Summarized in text at Two-Hat Expert, above.

Chem-Nuclear Systems, Inc. v. Arivec Chemicals, Inc., 978 F. Supp. 1105 (N.D. Ga. 1997)

Pursuant to an EPA order, plaintiff remediated the Basket Creek Road site, and then filed cost-recovery action against defendants. Plaintiff retained two investigative firms to interview witnesses. Lockheed moved to compel production of the investigative reports. The court denied the motion, holding that Lockheed’s desire to use the reports to verify information already available to Lockheed did not amount to a "substantial need" under FRCP 26(b)(3).

Horan v. Sun Company, Inc., 152 F.R.D. 437 (D.R.I. 1993)

Defendant served interrogatories requesting plaintiff to disclose the results of environmental sampling conducted by plaintiff’s consultant. Specifically, defendant requested information about the identity of the consultant, quality assurance measures taken, and the "precise location on the premises of any oil, gasoline, petroleum-based substances or chemical substances discovered by any such test." 152 F.R.D. at 438. Plaintiff objected to providing the report and any information derived from the investigation based on the work product doctrine. Plaintiff argued that defendant could hire its own consultant to obtain information about the condition of the site. Defendant responded that conditions at the site had changed, and it could no longer obtain the same information.

The court held that the information obtained by plaintiff, although work product, was "fact work product" and therefore could be obtained upon a showing of "adequate reasons." 152 F.R.D. at 439. The court found good cause for production of the information requested.

In re Grand Jury Matter, 147 F.R.D. 82 (E.D. Pa. 1992)

Company moved to quash grand jury subpoena to its environmental consulting firm. The company argued that it hired a law firm to assist it in proceedings initiated by the Pennsylvania Department of Environmental Resources, and that the law firm hired the consultant in order to render legal services. The court denied the motion to quash and the company’s motion for a protective order.

As to the attorney-client privilege, "when a client’s ultimate goal is not legal advice, but is rather accounting, medical or environmental advice, the [attorney-client] privilege is inapplicable. 147 F.R.D. at 85. The court found that the documents were made in the course of the consultant’s preparation of a waste management plan, and not for the purpose of assisting the law firm to provide legal advice. On a project start-up sheet, the company not the law firm, was listed as the consultant’s client; the law firm was listed under "invoice information." Moreover, the consultant requested that it be paid by the law firm, because of concerns about payment of its fees, and there were no billings for consulting with the law firm.

As to the work product doctrine, the documents were not protected because it was "obvious that the documentation of these activities by the expert consultant was made for the purpose of the expert consultant’s preparation of a waste management plan for submission to the federal and [state] authorities, and not for the purpose of assisting the law firm in providing informed legal services." 147 F.R.D. at 87.

In re Pfohl Bros. Landfill Litig., 175 F.R.D. 13 (W.D.N.Y. 1997)

Toxic tort action concerning a landfill in Cheektowaga, New York. Plaintiffs contended that, for purposes of the statute of limitations, they were entitled to the delayed discovery provisions of CERCLA, 42 U.S.C. 9658(b)(4)(A), which establishes a "federally required commencement date" ("FRCD") for state statutes of limitation. The FRCD is defined as "the date the plaintiff knew (or reasonably should have known) that the personal injury or property damages were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." 42 U.S.C. s 9658(b)(4)(A).

The court addressed numerous privilege issues and held generally that no document produced prior to the FRCD could contain work product, as plaintiffs did not have a cause of action prior to the FRCD, and that plaintiffs had waived attorney-client privilege. With respect to consultant activities, the Court held that summaries of environmental investigations conducted at the plaintiff’s properties were protected by the work product doctrine so long as they were based on data obtained after the FRCD. 175 F.R.D. at 30.

Inspiration Consolidated Copper Co. v. Lumbermens Mutual Casualty Co., 60 F.R.D. 205 (S.D.N.Y. 1973)

Summarized in text at Two-Hat Expert, above.

Joiner v. Hercules, Inc., 169 F.R.D. 695 (S.D. Ga. 1996)

Court reviewed rulings of a magistrate judge on attorney-client privilege and work product issues under the clearly erroneous standard. The court applied Georgia state law on privilege issues. The court upheld magistrate’s determinations of privilege and work product without specifying the type of documents reviewed. The court also upheld the application of the self-critical analysis privilege to unspecified documents. Finally, the court found that an in-house study of remediation costs prepared at the direction of in-house counsel was protected by the work product doctrine. Plaintiffs could prepare, and in fact had prepared, their own estimate of remediation costs, and therefore did not have a substantial need for the study.

Maertin v. Armstrong World Indus., Inc., 172 F.R.D. 143 (D.N.J. 1997)

Armstrong was notified of potential PCB contamination in its ceiling tiles and investigation by EPA and New Jersey state authorities. Armstrong formed a team to investigate and respond, which conducted meetings and produced reports. Plaintiffs in this toxic tort case sought production of documents generated during that investigation. The court upheld Armstrong’s assertion of work product protection for all of the disputed documents. The court held among other things:

• "[A] person's ‘unilateral belief’ that litigation will result is the initial focus of the inquiry into whether the document was prepared ‘in anticipation of litigation.’ However, the preparer's anticipation of litigation must be tempered by objective reasonableness." 172 F.R.D. at 148 (citing Martin v. Bally’s Park Place Hotel & Casino, 983 F.2d 1252, 1260 (3rd Cir. 1993))
• The fact that Armstrong involved in-house counsel and retained outside counsel suggested a subjective belief that litigation might ensue.
• The work product doctrine protected the requested documents despite the fact that they were prepared in anticipation of a different claim. "[T]he identity of subject matter is sufficient to meet the ‘in anticipation of litigation’ test, notwithstanding that the materials were prepared for different proceedings, one civil and the other criminal." 172 F.R.D. at 150, n.3.
• "[A] purely factual document is not precluded from qualifying as work product that was prepared in anticipation of litigation." 172 F.R.D. at 150.
• The work product "doctrine's application is not limited to materials produced only by lawyers. Rule 26(b)(3) of the Federal Rules of Civil Procedures defines a ‘representative’ expansively, permitting a ‘consultant, surety, indemnitor, insurer, or agent’ to assert the privilege." 172 F.R.D. at 151.

Marine Petroleum Co. v. Champlin Petroleum Co., 641 F.2d 984 (D.C. Cir. 1980)

Summarized in text at Two-Hat Expert, above.

Metro Wastewater Reclamation Dist. v. Continental Casualty Corp., 142 F.R.D. 471 (D. Colo. 1992)

Metro and Lakewood sought declaration regarding insurance coverage for EPA proceedings. Defendants moved to compel production of Metro’s communications with its attorneys and consultants regarding the EPA proceedings, and Metro objected, asserting attorney-client privilege, work product, and the joint defense privilege.

The court held that Metro had a common interest with its insurers regarding the EPA proceedings, and that therefore its communications with its attorneys and agents were not protected by the attorney-client privilege. The court also found that Metro waived the attorney-client privilege because the "documents sought . . . may well have a significant bearing" on certain issues the court found relevant to the coverage dispute. 142 F.R.D. at 477.

The court held that Metro could not assert work product with respect to its consultants’ activities either before the EPA proceedings (because there was no identifiable prospect of litigation), or after a consent decree was signed (because the prospect of litigation had been eliminated). The court further held that the "common interest" doctrine applied to work product and allowed the insurers access to plaintiffs’ consultants work. "The qualified immunity afforded to work product simply does not allow an insured to withhold documents from its insurer when those documents relate to underlying litigation for which the insured is seeking defense and/or indemnification." 142 F.R.D. at 478.

The court also held that purported joint defense activities undertaken to effect the terms of the EPA consent decree were not entitled to protection under the joint defense privilege because there was no pending or threatened litigation.

The court’s rulings in this case may have been colored by plaintiffs’ assertion of privilege over thousands of documents in a 300-page privilege log.

Occidental Chemical v. OHM Remediation Services Corp., 175 F.R.D. 431 (W.D.N.Y. 1997)

Occidental sued OHM for breach of a contract to remediate the Durez Inlet. Plaintiff moved to compel production of documents regarding the services of consultant Rust. Rust was hired by plaintiff’s counsel to act as consultant regarding design and development of a remediation plan, and to act as engineering consultant for the actual remediation.

The court held that Occidental failed to prove that Rust was hired to assist its counsel in providing legal advice. The documents also contained information which plaintiff would have been expected to compile in the ordinary course of supervising its remediation contract with OHM, and not just in preparation for litigation.

The court also held that Occidental had put at issue the conditions of the site during the remediation project, and thus had waived any work product protection, citing Vermont Gas Systems v. United States Fidelity & Guaranty Co., 151 F.R.D. 268, 276 (D. Vt. 1993); Remington Arms Co. v. Liberty Mutual Ins. Co., 142 F.R.D. 408, 412 (D. Del. 1992).

With respect to the attorney-client privilege, the court recognized that under certain circumstances, consultants could fall within the privilege, but held that Rust did not because Rust was not "translating" data obtained from the client, but rather collecting information not obtainable from plaintiff, citing United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156 (E.D.N.Y.1994); Federal Trade Commission v. TRW, Inc., 628 F.2d 207 (D.C.Cir.1980).

State of New York v. Solvent Chemical Co., Inc., 166 F.R.D. 284 (W.D.N.Y. 1996)

In a CERCLA case, defendant ICC (and related parties) hired its own former employee, Beu, as a consultant. Beu was a vice-president of ICC and a subsidiary. Beu left and filed claims against ICC and lost in arbitration. The subsidiary also filed claims against Beu in another action as an alleged former owner/operator of the subsidiary’s site.

OCC served a deposition subpoena on Beu. ICC then (1) settled the subsidiary’s claims against Beu. Beu paid $4,000 in return for indemnity from the subsidiary; (2) covenanted not to sue Beu in the captioned case; and (3) hired Beu at $100 per hour plus expenses to interpret documents for the company. During his deposition, Beu initially denied that he had any consulting arrangement with ICC, but admitted the arrangement on the third day. Counsel then instructed him not to answer questions about his work for ICC.

On cross-motions for production and for a protective order, the court held that "the conduct of ICC [and its] counsel in relation to Mr. Beu has threatened to undermine the integrity of the adversary process in this case." 166 F.R.D. at 289. The court acknowledged that there was nothing improper in hiring a fact witness as a consultant, but found that "in providing Mr. Beu with protection from liability in [the two cases] as a means of obtaining his cooperation as a fact witness, ICC . . . went too far." 166 F.R.D. at 290. The court ordered production of the consulting agreement (despite the claim that it contained work product), all documents reviewed by Beu, all writings produced by Beu, any notes of communications with Beu, and ordered ICC to pay the costs of a further deposition.

United States Postal Service v. Phelps Dodge Refining Corp., 852 F. Supp. 156 (E.D.N.Y. 1994)

The Postal Service moved to compel production of communications between two of defendant’s remediation consultants and defendant and defendant’s counsel. The court held that the communications were not covered by the attorney-client privilege. The court relied on the seminal decision in United States v. Kovel, 296 F.2d

918 (2d Cir.1961). In Kovel, Judge Friendly ruled that "the attorney-client privilege can attach to reports of third parties made at the request of the attorney or the client where the purpose of the report was to put in usable form information obtained from the client." Federal Trade Comm'n v. TRW, Inc., 628 F.2d 207, 212 (D.C.Cir.1980).

The consultants were hired by defendants to prepare a remediation plan and to oversee remedial work. "Their function was not to put information gained from defendants into usable form for their attorneys to render legal advice, but rather, to collect information not obtainable directly from defendants." 852 F. Supp. at 161.

"Courts that have considered the application of the attorney-client privilege to independent outside consultants have been cautious in extending its application." 852 F. Supp. at 161.

The consultants based their opinions on factual and scientific data that they collected, not from client confidences. "Such underlying factual data can never be protected by the attorney-client privilege and neither can the resulting opinions and recommendations. There are few, if any, conceivable circumstances where a scientist or engineer employed to gather data should be considered an agent within the scope of the privilege since the information collected will generally be factual, obtained from sources other than the client." 852 F. Supp. at 162.

This article originally appeared in the December 1999 issue of Chemical Waste Litigation Reporter, Volume 39, Number 1, Page 6. Call 202-462-5755 to subscribe.

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