The recent case styled Valley Forge Ins. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006-RLM-SLC, in the United States District Court for the Northern District of Indiana (April 14, 2017), reminds lawyers that not all communications between lawyers and environmental consultants are privileged despite the best efforts to make them privileged.
Essentially, the Court held that the attorney-client privilege does not protect a lawyer’s e-mails to environmental contractors when the communications concern remediation as opposed to litigation (or obtaining information in order to provide legal advice). The Court conducted an in camera review of 185 e-mails and concluded that the evidence reflected that the environmental consultant was retained for the primary purpose of providing environmental consulting advice and service to the client in designing and constructing a storm water management system, not because the client’s counsel needed the environmental consultant to “translate” information into a useable form so that counsel could render legal advice. The Court, however, did find that a number of the e-mails were subject to the work-product doctrine.
This case provides a good overview of the protections afforded by the attorney-client privilege and the work-product doctrine in the environmental law context. While it is a civil case, the principles are applicable to criminal cases as well.
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