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Britestarr Homes Inc. - Ruling, January 15, 1993

Ruling, January 15, 1993


In the Matter of

Alleged Violations of Articles 27 and 25 of the Environmental Conservation Law ("ECL")
and Parts 360 and 661 of Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State of New York ("6 NYCRR")

- by -




Case # R2-3324-90-11

These rulings are in response to a motion by the Department Staff for a protective order against discovery of several documents sought by the respondents in this proceeding. The Department Staff has already made available all the documents sought through discovery by the respondents, with the exception of four documents which the Department Staff claims are privileged. The Department Staff has submitted a written motion for a protective order along with copies of the subject documents for the Administrative Law Judge's in camera review. One of the respondents has responded in opposition to Staff's motion for a protective order.

The Department's enforcement hearing regulations provide, at 6 NYCRR 622.8(a) that "[t]he scope of discovery shall be as broad as that provided in the CPLR." The CPLR 3101(a) sets forth the general scope of disclosure as "all evidence material and necessary in the prosecution or defense of an action." Subdivision (b) of 3101 provides that "privileged matter" is not obtainable upon objection to disclosure. Subdivision (c) provides that the "work product of an attorney" is not obtainable. Subdivision (d), paragraph (2) of CPLR 3101 establishes a conditional protection from discovery of "materials . . . prepared in anticipation of litigation or for trial . . ." If discovery of such litigation materials is ordered, the court must "protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation."

The Department Staff has asserted one or more of those three privileges or immunities against discovery for each of the four documents for which it seeks a protective order. The first three items are communications to or from a Department Staff attorney, for which the Department Staff is relying primarily on the attorney-client privilege which is covered by CPLR 3101(b) and further set forth as a rule of evidence by CPLR 4503. The fourth document is a memo between two Staff members which the Staff claims is privileged as material prepared in anticipation of litigation, and immune from discovery under 3101(d)(2).

The attorney-client privilege, like any privilege, operates at cross purposes to the policy favoring of full disclosure of relevant evidence. "Consequently, the burden of establishing any right to protection is on the party asserting it; the protection claimed must be narrowly construed; and its application must be consistent with the purposes underlying the immunity (Spectrum Systems International Corp. v. Chemical Bank, 78 NY2d 371, 378). The elements of the attorney-client privilege are derived from the common law and are now codified in the CPLR 4503. CPLR 4503(a) states that the privilege attaches to confidential communications between an attorney and client in the course of professional employment, unless the client waives the privilege.

The CPLR 3102(f) provides that disclosure is generally available to parties in civil litigation from "the state . . . as if the state were a private person." This statute was enacted in order to expand the availability of disclosure by the state in civil actions (see Siegel, Practice Commentaries, McKinneys Cons. Laws of NY, Book 7B, CPLR C3102:10).

However where a state government agency is asserting the attorney-client privilege in an enforcement proceeding, the circumstances under which the elements of the privilege must be considered are somewhat different than those prevailing between a private attorney and a private client. It is not always clear, for example, who exactly is the "client" of agency staff attorneys. Government agency attorneys, particularly a high-ranking Deputy Commissioner like the Department's General Counsel, also often act in various capacities other than that of an attorney rendering legal advice to a client.

In addition, State agency attorneys are public officers ultimately responsible to serve the people of the State. Government attorneys are in a real sense "retained" by the public, in addition to providing legal services to other branches of the agency. For this reason there is generally less policy justification to cloak government attorneys' communications with the confidentiality afforded by the attorney-client privilege. This policy is recognized in the State's Freedom of Information Law ("FOIL," Public Officers Law 84-90) which, although procedurally distinct from CPLR discovery, is intended to encourage the openness of government activities. The public and respondents' interest in such openness is especially great when a state agency initiates an administrative enforcement proceeding. Although only civil penalties are sought, the nature of the proceeding is more analagous to a criminal prosecution brought in the name of the "people."

The Department Staff, in apparent recognition of these principles, has essentially opened its files in this matter to the Respondents upon receiving their discovery requests. Staff is now claiming privilege only with respect to four short documents, which it has disclosed to the ALJ for in camera review: a memorandum dated September 20, 1990 from Marc S. Gerstman, Deputy Commissioner and General Counsel for the Department, to Carol Ash, then Regional Director of the Department's Region 1 Office; a letter dated March 1, 1990 from Mr. Gerstman to Robert Abrams, Attorney General of the State of New York; a memorandum dated June 13, 1989 from Jeffrey Rabkin, a staff member of the Department's Division of Regulatory Affairs in Region 1, to John Nehila, Assistant Regional Attorney; and a memorandum dated February 22, 1991 from Barbara Rinaldi, Regional Permit Administrator, to George Danskin, Chief Permit Administrator for the Division of Regulatory Affairs in the Department's Central Office. The Department Staff's claim of privilege with respect to these four documents will be discussed below first generally, and then specifically with respect to each document in turn.

In general, these types of internal communications would be privileged as between private attorneys and their clients. Within a government agency they could also be privileged under the common law public officer's privilege recognized in New York (see Cirale v. 80 Pine Street Corp., 35 NY2d 113). Under the public officer's privilege, a balancing test is used to determine whether the government's interest in confidentiality of intra-agency memoranda is outweighed by the party's interest in disclosure (Matter of Schwartz, 130 Misc.2d 786). The parties have not claimed, and my in camera review of the documents has not, however, revealed any substantial interest either in their confidentiality or in their disclosure.

The elements of any privilege claimed must still be shown by the Department Staff. However, although not specifically argued by the parties, the general rule requiring disclosure of items that are material and necessary, also remains as an overriding consideration. In that respect, my in camera inspection of the documents has revealed that none of them are material or necessary to the Respondents' defense in this proceeding. As further discussed below, they are preliminary internal memoranda which have been completely superseded substantively and procedurally by the filing of the Complaint and Amended Complaint in this proceeding. None of the four documents directly addresses any of the relevant facts alleged in the Complaint. It is not clear whether these documents were even sought by the Respondent John Maticic, the only one who filed a written discovery notice to produce.

In this regard, in view of the fact that the Staff has already released to the Respondents virtually all other documents in the file, including other intra-agency memoranda, it is difficult to understand why these four were not also disclosed. The Department Staff's prior course of disclosure and its filing of the Complaint could almost be construed as an implied waiver of any privilege for these remaining documents. However, in the absence of any substantial interest in either the confidentiality or disclosure of these documents, the Staff's claims of privilege will be addressed by considering the applicable elements of the privileges in a relatively mechanistic fashion, without reference to any other discovery rules.

The primary purpose of the September 20, 1990 memorandum from Mr. Gerstman to Ms. Ash is to advise the region of the initiation of the investigation of Respondent by the Department's enforcement branches and to request the Regional Office's cooperation. It does briefly outline a preliminary legal basis for believing that Britestarr may have committed violations. The memorandum is a routine liaison between Central Office's legal division and the region. It does not rise to the level of an attorney's work product; nor was it material prepared for litigation. However, it does come within the attorney-client privilege as a communication concerning the legal services provided by Mr. Gerstman's division to the "client," in this instance the regional staff. Hence the Department Staff's privilege claim is upheld and this memo need not be disclosed.

The March 1, 1990 letter from Mr. Gerstman to the Attorney General is also primarily a request for the delivery of legal services, in this instance by the Department as the client of the Attorney General. It contains a brief straightforward description of the status of the City's action against Respondents and the Department's position concerning possible violations. Again, although not an attorney's work product or material prepared for litigation, it is covered by the attorney-client privilege and need not be disclosed.

The June 13, 1989 memorandum from Mr. Rabkin to Mr. Nehila concerns the permits the Respondents needed for their project and possible violations, and notes that further inspections are scheduled. It comes within the attorney-client privilege as a communication from staff, the client, to the attorney regarding legal liability of the Respondents. Hence, it need not be disclosed.

The Department Staff claims that the February 22, 1991 memorandum from Ms. Rinaldi to Mr. Danskin is immune from discovery as material prepared for litigation under CPLR 3101(d)(2). This exemption from disclosure requires however that the material have been prepared exclusively for litigation (see Carden v. Allstate Ins. Co., 105 AD2d 1048). The memorandum is entitled "Chronology on Britestarr Homes." It lists dates and correlates them to various procedural events concerning this proceeding, concentrating on internal contacts among the Division of Regulatory Affairs, the Division of Legal Affairs, and the Office of Hearings. Although Staff states that this was prepared after commencement of the enforcement proceeding in anticipation of litigation, Staff does not indicate any actual use for the chronology in any litigation. On its face this chronology is not material prepared for use in litigation, but rather an internal documentation of bureaucratic file-shuffling for the information of Mr. Danskin in the Division of Regulatory Affairs. While it could have been contended that the Rinaldi memorandum is not discoverable as not material and necessary, this inquiry is limited to whether it is privileged. Since it is not privileged as claimed by the Department Staff, it must be disclosed.

Additional discovery and motions will proceed in this matter according to the modified schedule set forth in the letter by Mr. Buss dated December 22, 1992.

By: Andrew S. Pearlstein
Administrative Law Judge

Dated: January 15, 1993
Albany, New York

To: John Nehila, Esq.
NYSDEC Region 2
47-40 21st Street
Long Island City, NY 11101

Jeffrey D. Buss, Esq.
Smith, Buss & Jacobs
1370 Avenue of the Americas
New York, NY 10019

David A. Engel, Esq.
Harris, Beach & Wilcox
20 Corporate Woods Boulevard
Albany, NY 12211

Richard Rehbock, Esq.
20 Vesey Street
Suite 500
New York, NY 10007

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