Adams v. Teck Cominco Alaska, Inc.

232 F.R.D. 341, 2005 U.S. Dist. LEXIS 38318, 2005 WL 3071474
Procedural entryThis page is a short order in Adams v. Teck Cominco Alaska, Inc.. Read the opinion of the Court — 396 F. Supp. 2d 1095
District Court, D. Alaska·Decided November 3, 2005·No. No. A04-49 CV (JWS)·Published

Opinion

[342]*342ORDER FROM CHAMBERS

SEDWICK, District Judge.

I. MOTION PRESENTED

At docket 86, plaintiffs Enoch Adams, Leroy Adams, Ardrew Koenig, Jerry Norton, and Joseph Swan move to compel production of documents requested in plaintiffs’ request for supplemental disclosures. At docket 87, defendant Teck Comineo Alaska, Inc. (“Teck”) opposes the motion. Plaintiffs’ reply is filed at docket 90. No party requested oral argument, and it would not assist the court.

II. BACKGROUND

On March 3, 2005, plaintiffs deposed Mark Thompson, Teck’s Senior Environmental Coordinator. Thompson testified in pertinent part:

Q. Do you talk about compliance with [Mike Fillion of Teck Comineo Limited] on an ongoing basis, like last month we had two exceedances or we had to send EPA two letters of possible exceedances?
A. No. We produce monthly and quarterly reports.. .that would have that in that go to corporate, but [] I’m not even sure who those go to.
Q. Who produces those reports?
A. Each department on site produces their own section.
Q. And they’re put together into a single report?
A. Yes.
Q. Who puts them into the report?
A. Generally the administrative secretary.
Q. So it’s — describe what a monthly report looks like.
A. We get — on a monthly report, we get about a half a page, lists spills, noncompliances, significant events. We save it, save it on the network, and then the administrative secretary goes and fetches it and cuts it and pastes it into her main document. Roughly a half a page to a page.
Q. How long is the typical monthly report?
[343]*343A. I’m not sure.
Q. Okay. When you say the monthly and quarterly reports go to corporate, what are you referring to.
A. They go — they’re delivered to somebody in the corporate office in Vancouver.
Q. Who — how do they get there?
A. I’m not that familiar with how these monthly reports go or even really what’s contained in them. I just know that we’re asked to put them together. I don’t know who they go to, who reviews them or anything.1

On March 7, 2005, plaintiffs filed Request for Supplemental Disclosure No. 7a, which states:

Please produce the following documents referred to during the Deposition of Mark Thompson, conducted March 3, 2005.. .All monthly and quarterly reports prepared by Teck Comineo Alaska Incorporated staff “for corporate” that detail spills, noncompliance or “significant events” from 1998 to the present; this does not include Discharge Monitoring Reports or notices of exceedances sent to APA. Mr. Thompson testified that these reports are prepared “for corporate” and are generally less than one page per month.2

On May 6, 2005, Teck filed its response to the above request, stating “[documents responsive to this request are available for inspection and copying.” 3 On June 27, 2005, Teck filed an amended response to plaintiffs’ request for supplemental disclosure, stating:

Teck Comineo Alaska previously indicated that documents responsive to Request for Supplemental Disclosure 7a were available for inspection and copying. Since the time of that response, Teck Comineo Alaska has determined that all responsive documents are privileged. Consequently, Teck Comineo objects to production on the basis that the request seeks documents protected from disclosure by the attorney client privilege. Teck Comineo Alaska further objects that the request seeks documents protected from disclosure by critical self analysis privilege. Teck Comineo Alaska further objects that the request seeks documents protected from disclosure by the work product doctrine.4

Defendant attached a privilege log to the amended response, which includes the following pertinent entries: Teck Comineo Monthly Compliance Reports from January 2003 through March 2005, Red Dog Mine 2002 Operating Monthly Reports, Red Dog Mine Property Summary/Overview for January through December 1998-2001, Red Dog Mine Quarterly Environmental Reports for First Quarter 1998, and Red Dog Mine Quarterly Environmental Reports for Second Quarter 2002 through First Quarter 2005.5

Plaintiffs’ counsel subsequently attempted to obtain the requested documents from defendant’s counsel without success. By letter dated July 18, 2005, defendant’s counsel informed plaintiffs’ counsel that the requested documents are privileged and would not be produced.6 Plaintiffs now move to compel “the production of documents created by [Teck] that summarize its non-compliance with its federal Clean Water Act permits.”7 Defendant opposes the motion.

III. DISCUSSION

Pursuant to Federal Rule of Civil Procedure 26(b)(1), “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party.” Plaintiffs move to compel production of “documents created by [Teck] that summarize its noncomplianee with its federal Clean Water Act permits”8 on the grounds that the documents are relevant and are not privi[344]*344leged. Defendant opposes the motion on the grounds that the documents are protected by the attorney client privilege, the work-product doctrine, and by the critical self-analysis privilege.

The court considers each of defendant’s alleged defenses to production in turn.

Attorney-Client Privilege

Defendant alleges that the requested “documents are prepared by Teck Comineo for Teck Comineo’s general counsel in order to enable him to provide legal advice to Teck Comineo with respect to all issues of risk management facing the company.”9 As evidence, defendant relies solely on the declaration of James Kulas, Superintendent of the Environmental Department of Teek’s Red Dog Mine. Kulas testifies that the reports Thompson prepares are sections of a larger report that is “forwarded to a member of the risk management committee” and “then combined with similar information prepared by persons in other operations.” Kulas further testifies:

The final compiled document is then forwarded to Mr. Manuel so as to enable him to provide sound legal advice to his clients. The reports address every legal issue faced by the company, including the above captioned litigation and all other litigation matters, and are kept in the strictist of confidence.

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Adams v. Teck Cominco Alaska, Inc., 232 F.R.D. 341, 2005 U.S. Dist. LEXIS 38318, 2005 WL 3071474 (D. Alaska 2005).

232 F.R.D. 341 (Adams v. Teck Cominco Alaska, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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