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Lasdon, William S. (Estate of) - Letter Ruling 3, January 27, 1993

Letter Ruling 3, January 27, 1993

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

January 27, 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: Ruling in response to Estate's January 21, 22, and 25, 1993 requests for document inspection and letter commentary of January 26, 1993 and the Department Staff's January 22 and 26, 1993 responses.

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

This ruling addresses Respondent's requests that my January 20, 1993 Omnibus Disclosure Ruling excluding certain documents from discovery, be reconsidered. The arguments raised in this motion were not raised at the January 15, 1993 proceeding as they should have been, but in the interests of fairness they are considered anyway. The Estate argues (1) that some documents which are entitled to attorney-client privilege or attorney work product status should nonetheless be disclosed because they are necessary to the Estate's defense, (2) the other documents were not properly characterized and are not entitled to any protection under the CPLR and (3) there are as yet unidentified files in the Staff's possession that have not been disclosed. For the reasons stated below, I am reaffirming my earlier ruling.

There are strong public policy reasons for excluding from disclosure materials that are covered by the attorney-client or the attorney work product exclusion. To compel disclosure of such information, a party needs to show that there is a substantial need for the materials and that cannot otherwise be obtained without undue hardship. Hayward v. Willard Mountain, 266 N.Y.S.2d. 453 (1966). Most frequently, such requests are granted where a key piece of evidence is destroyed and cannot be reproduced.

In this case, the Estate has not presented adequate proof that its requests meet the tests set forth above. The Estate has made conclusory statements to support its position but has not presented any affidavits or other proof showing the evidence is otherwise unavailable nor has it shown what efforts were made to obtain the evidence by other means.

There was also no evidence presented to demonstrate that the information sought by the Estate is necessary to the case. Cardillo v. Hillcrest General Hospital, 134 A.D.2d 229, 520 N.Y.S.2d 428 (2d Dept. 1987). Without this information I am left to speculate as to the usefulness of the documents sought.

The Estate asserts that it is entitled to see the entirety of certain incomplete documents for which the attorney-client privilege was invoked but which were inadvertently included in a file open for inspection. Inadvertent disclosure of the documents however, does not waive the privilege asserted. Manufacturers and Traders Trust Company v. Servotronics, Inc., 132 A.D.2d 392, 522 N.Y.S.2d 999 (4th Dept. 1987). Accordingly, the Estate is not entitled to the unattached documents noted in the inadvertently disclosed information.

With respect to the Estate's arguments that the stipulations, RIFS documents and settlement matters among the DEC, Nepera and Warner Lambert should be available, I have already ruled on these matters.

The Estate continues to argue that there may be other documents in the Staff's files that are as yet unidentified. As stated in my earlier ruling, there is no basis to suspect that all documents in the Staff's possession have not either been disclosed or been identified as entitled to exemption from disclosure. The Estate's claims are pure speculation and no relief is warranted.

I hereby determine the discovery phase of this hearing is closed and that all pending requests before me have been substantially addressed. All that remains is the filing of the Estate's answer to the Department Staff's complaints. The Department Staff have consented to an extension of the filing date for the answer to February 26, 1993. That date is now set as the date by which the Estate's answer is due.

Parenthetically, the use of telephone conference calls in this matter has become problematic. The frequency of their use has diminished the written record of correspondence and overall, they have been very time consuming. Henceforth, should a conference call be necessary, the Chief ALJ will initiate it. Otherwise, the parties will correspond in writing and refrain from the use of telephone conference calls.

This confirms the Department Staff's intention to forward to Mr. Sachs a map or diagram of an on-site pond, all as addressed in the Department Staff's January 22, 1993 correspondence.

January 27, 1993
Albany, New York
/s/
Daniel E. Louis
Chief Administrative Law Judge

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