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Lasdon, William S. (Estate of) - Second Interim Decision, February 11, 1993

Second Interim Decision, February 11, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1550

In the Matter
- of a -
Significant Threat to the Environment at an Inactive Hazardous Waste Site, under Article 27, Title 13, of the Environmental Conservation Law of the State of New York (the "ECL") and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York
("6 NYCRR) Part 375 by
ESTATE OF WILLIAM S. LASDON,
Respondent

Index Nos. W3-0623-92-10 (Harriman)
and W3-0624-92-10 (Maybrook)

SECOND INTERIM DECISION
February 11, 1993

SECOND INTERIM DECISION

The actual documents at issue have not been submitted as part of this appeal. However, the documentation which sets forth the list of documents being withheld and the accompanying explanations have been reviewed. While it is impossible to make a definitive determination regarding these documents, sufficient potential problems have been raised by the Respondent such that a revisiting of rulings made by Chief ALJ Louis is warranted.

Accordingly, the determination concerning whether the documents are entitled to be excluded from the discovery process will be remanded to Chief ALJ Louis with the following instructions.

1. Each document which is responsive to the Respondent's discovery request and which the Staff maintains should not be released shall be identified with reasonable specificity together with the basis for its exclusion. Identification of documents as "file document" is insufficient.

2. In the course of identifying exclusions from discovery, Staff shall limit their reference to bases identified in CPLR 3101. Identifying exclusions such as "for settlement" is insufficient.

3. Any document which is alleged to be attorney work product must have been drafted by an attorney. A document cannot be protected under this rationale if it was prepared by a non-attorney merely because an attorney's working notes are overlaid. In such a case, a clean copy of the document should be released (assuming no other applicable exemption).

Chief ALJ Louis shall review the documents cited in the Respondent's February 1 appeal with the above instructions in mind. He shall issue a written ruling which states the disposition of all of these disputed documents. The Respondent has indicated that it does not request additional time to file its answer, however, in the interests of fairness Respondent shall be allowed to file its answer either one week after the issuance of the Chief ALJ's ruling or on February 26, 1993, whichever is later.

IN WITNESS WHEREOF, the Department of Environmental Conservation has caused this Interim Decision to be signed and issued and has filed the same with all maps, plans, reports, and other papers relating thereto in its office in the County of Albany, New York this day of February 11, 1993

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

/s/
THOMAS C. JORLING, COMMISSIONER

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