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Lasdon, William S. (Estate of ) - Letter Ruling 2, January 20, 1993

Letter Ruling 2, January 20, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

January 20, 1993

Joel H. Sachs, Esq.
Plunkett and Jaffe, P.C.
1 North Broadway
White Plains, New York 10601

Alice McCarthy and David Rubinton, Esqs.
NYSDEC, Division of Environmental Enforcement
202 Mamaroneck Ave - Room 304
White Plains, New York 10601-5381

RE: DEC v. Estate of Lasdon: Omnibus Disclosure Ruling

Dear Mr. Sachs, Ms. McCarthy and Mr. Rubinton:

A January 15, 1993 disclosure proceeding was held in the Department's Region 3 White Plains office pursuant to my Order of December 23, 1992 and Assistant Commissioner Robert Feller's January 7, 1993 letter directing me to provide guidance to the parties and to resolve any disputes that may arise from such disclosure.

This omnibus ruling resolves all outstanding disclosure disputes between the Respondent Estate and the Department Staff. This ruling specifically addresses: the outcome of the January 15, 1993 in camera proceeding regarding the Department Staff's assertions claiming privilege on selected documents sought by the Estate; those disclosure matters contained in the Estate's January 13, 1993 letter and the Department Staff's January 14, 1993 response thereto; and the date by which the Estate will file its answer to the Department Staff's complaint.

At the subject proceeding the Department Staff made available to me those portions of the Department Staff's files Staff considered to be responsive to the Estate's discovery request but privileged against disclosure. These portions were alleged to contain attorney work product and material prepared for litigation. Also produced was 'technical' site investigation information which is not claimed to be privileged but was part of the file.

The sum of the in camera review is that most of the documents contained in the remaining files were in fact privileged and fell under the protection of attorney work product or material prepared for litigation. Those documents that were questionable were ultimately made available for disclosure by the Department Staff.

It was ordered that a list of the privileged documents be made by the Department Staff and that such documents be set aside from the remaining contents of the Department Staff's file. The list will be available by Friday, January 23, 1993 to Mr. Sachs and myself.

Mr. Sachs was not present during the in camera inspection but agreed to confer with the Department Staff early in the week of January 18 regarding a date on which he would review the disclosed information.

Turning to the Estate's January 13, 1993 letter and the Department's January 14th response thereto, the Estate raises a number of disclosure matters which essentially accuse the Department Staff of not making its files available at earlier inspections, e.g. that certain information is in the control of Warner Lambert or Nepera and is intentionally being released to the DEC on a piece-meal basis without the Estate's benefit of timely review and that copies of information attached to the Departments complaint were not in the Department files reviewed by the Estate and accordingly, additional files in the possession of DEC must exist.

The Department Staff replied that all files requested have been made available, that files in the possession of Warner Lambert and Nepera should be sought from these persons and not from DEC and, moreover, all such files, once coming into the possession of DEC were in fact made available to the Estate. In this regard, the Staff asserts the Estate did not ask to see 'technical' files during the January 11 and 13 inspection and therefore should not be heard to complain that they were not available. In any event, the 'technical' files were available on January 15 for inspection.

The claim that the Estate is being prejudiced because Warner Lambert and or Nepera are alleged to be releasing documents to the DEC in a piecemeal fashion does not stay the filing of its answer. Part 375-2.1 (b)(2) provides that discovery is limited against the Department and not third parties. The Department Staff is under no obligation to seek documents on behalf of the Estate from any third party. Moreover, the Estate has had ample opportunity to seek discovery from these parties on its own without relying on the information to be supplied by the Department Staff. In fact, the Department Staff assert that the Estate has already conducted discovery of these parties.

In its January 13, 1993 letter, the Estate claimed that Department files must exist elsewhere that were never made available to the Estate based on existing information attached to the complaints but not found in the Departments files. The January 15th inspection however revealed the existence of these documents included in the 'technical' file.

At this point, the representations of the Department Staff that all files have been available and absent any proof or substantive inference to the contrary, it is reasonable to conclude that all files pertaining to this action are available for review, were available on January 15, 1993 and will be available at the subsequent inspection early in the week of January 18th.

The Estate also asserts that a protective order should be granted the Estate to prohibit communications between representatives of the Department and Warner Lambert and Nepera. This motion was heard previously before ALJ Buhrmaster and denied by him in rulings dated September 1, 1992. As I explained at the January 15th proceeding, ALJ Buhrmaster's involvement at this stage of the action is because of the case being brought under Part 622 and then being converted to a Part 375 hearing. ALJ Buhrmaster has continuing jurisdiction to ensure compliance with his rulings including those applying the new Part 375 procedures to this hearing.

The date by which the Estate shall answer the Department Staff's Complaints is February 19, 1993, which is 30 days after the close of discovery.

As I advised the parties on January 15, 1993, any interlocutory appeal filed with the Commissioner will not automatically extend the date by which the answer is to be filed.

January 20, 1993
Albany, New York
/s/
Daniel E. Louis
Chief Administrative Law Judge

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