A New York court recently concluded that sampling data cannot be protected from disclosure under either the attorney client privilege or the attorney work product doctrine. In Abbo-Bradley v City of Niagara Falls, __ F.Supp.2d __ (W.D. N.Y. July 2013), plaintiffs instituted an action alleging that they had suffered personal injury and property damage as a result of releases of hazardous waste. Shortly thereafter, plaintiffs sought a temporary restraining order to require defendants to provide plaintiffs with advance notice of any sampling and an opportunity to take split samples. An agreement was reached regarding the language of such an order. Then, when plaintiff’s began sampling, defendants sought a similar order requiring plaintiffs to provide advance notice and an opportunity to split samples. Plaintiffs objected to the proposed order based on the attorney work product doctrine.
The court noted that the work product doctrine protects two types of materials that are prepared for litigation: (1)documents that contain the opinions or mental impressions of attorneys and (2) factual investigations and technical analyses. The court noted that attorney opinions and strategies receive more protection than factual analyses. Work product does not, however, protect the factual material that is the source of the work product (i.e.,facts used by the attorney to develop strategy or facts analyzed by techical experts). Here, the court noted that defendants were not seeking mental impressions or strategies or the results of plaintiffs’ technical analysis. They were merely seeking facutal information to assure that all parties have access to the same material. The court also noted that the attorney client privilege could not protect this information because that protects confidential communications from attorney to client and the source of this information is not the client.
This decision raises questions about the common practice of having the attorney retain the consultant so that the consutant’s findings will be protected. The decision suggests that any such protection will be limited. The factual data is likely not to be protected, but the analyses can be protected.