The Equal Rights Center v. Lion Gables Residential Trust et al, No. 8:2007cv02358 - Document 130 (D. Md. 2010)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/15/10. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : THE EQUAL RIGHTS CENTER : v. : Civil Action No. DKC 07-2358 : LION GABLES RESIDENTIAL TRUST, et al. : MEMORANDUM OPINION Presently pending and ready for resolution in this action alleging violations of the Fair Housing Act ( FHA ) and Americans with Disabilities Act ( ADA ) are motions filed by Defendants Lion Gables Residential Trust and Lion Gables Realty Limited Partnership to designate discovery material as public, or, in the alternative, for leave to seal (paper 92); by Plaintiff, The Equal Rights Center, to compel discovery (paper 109); and by Defendants for leave to file a surreply (paper 110). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendants motion to designate material as public will be granted in part and denied in part; Plaintiff s motion to compel discovery will be granted in part and denied in part; and Defendants motion to file a surreply will be denied. I. Background Plaintiff, The Equal Rights Center ( ERC ), is a non-profit civil rights organization dedicated to identifying, challenging, and eliminating discrimination in housing, employment, public accommodations, and government services. Defendant Lion Gables Residential Trust is a real estate investment trust, organized under Maryland law, housing dwellings Gables Realty that across Limited develops the United Partnership and manages States. is a multifamily Defendant Delaware Lion limited partnership owned and controlled by the Lions Gables Residential Trust (together, Gables ). On September 6, 2007, ERC filed a complaint in this court alleging that Gables had engaged in a continuous pattern and practice of discrimination against persons with disabilities in violation of constructing, both the controlling, FHA and managing, the ADA and/or by designing, owning covered multifamily dwellings, and the common-use and public-use areas associated with those covered dwellings, in such a manner as to deny persons with disabilities access to, and the use of, these facilities as required under these federal civil rights laws. (Paper 1, ¶ 5). See 42 U.S.C. §§ 3604(f)(1), (2), (3)(c); 42 U.S.C. §§ 12182(a), 12183(a)(1). After an initial period of motions practice, the parties commenced an extensive discovery process that has been facilitated by an agreement that Gables 2 will provide rolling responses for the subject properties in seven nationwide regions according to a schedule. While the parties have worked diligently to resolve many discovery issues that have arisen, they have requested court intervention with respect to others. Several of those outstanding issues are addressed herein. II. Gables Corrected Motion to Designate Discovery Material as Public or, in the Alternative, for Leave to Seal On April 27, 2009, the court issued a Stipulated Order Regarding Confidentiality of Discovery Material, which provides, in pertinent part, that either party may designate discovery material as confidential only when such person in good faith believes it contains secrets or other commercial agreed sensitive confidential information. that any personal research, (Paper information information, 55, or ¶ trade development, 1(a)). documents The or parties designated as confidential shall not be used or disclosed . . . for any purposes whatsoever other than preparing for and conducting the litigation (id. at ¶ 1(c)), and that where such confidential materials are filed with the court, they must be filed under seal and accompanied by a simultaneous motion pursuant to L.R. 104.13(c) (id. at ¶ 2). The order further provides that a designation of confidentiality may be challenged upon motion, and that [t]he burden of proving 3 the confidentiality of designated information confidentiality. remains with the party asserting such (Id. at ¶ 4). On October 21, 2009, Gables filed under seal a number of exhibits in support of two motions for protective orders (papers 85, 86), along with a motion to designate discovery material as public or, in the alternative, for leave to seal the material (paper 87). That replaced, the corrected motion motion following (paper was day, subsequently by 92). a The withdrawn and substantively-identical underlying motions for protective orders were decided at a motions hearing held on November 19, 2009. (Papers 102, 105). Gables corrected motion to designate discovery material as public, or to seal, however, is still pending. Gables corrected motion challenges the confidentiality designation by ERC of a number of floor plan review files and testing files attached as exhibits. ERC concedes that the floor plan reviews do not need to be confidential; accordingly, Gables motion will be granted with respect to those documents. ERC contends, however, that the testing files contain innovative methods for conducting accessibility inspections akin to trade secrets, that confidential, those and documents that they were must motions papers filed by Gables. 4 properly remain under designated seal in as the Under the confidentiality agreement, the burden is on ERC to justify confidential treatment. the methodology set forth It asserts that it developed in its testing files through confidential research that has taken place over a number of years and that public disclosure would compromise its ability to perform objective and anonymous inspections of multi-family housing, as the files illustrate specific patterns and reveal the identity of testers. At the November 19, 2009, motions hearing, counsel for ERC proffered, [t]here are other firms that are seeking access to the same public funds to do testing and there are testing. developers that (Paper 105, at 17). are interested in thwarting At this stage, the documents are only being used as discovery and were submitted to the court to resolve a discovery dispute. They will not be used to support ERC s claims on the merits. Gables counters that documents demonstrating the testing methodology are litigation brought defendant, and inadvertent, Moreover, it Gables available by on ERC that while taken no contends, public against ERC has the this a asserts steps to docket of prior similarly-situated this disclosure correct confidential the was error. information was submitted by ERC to HUD in order to secure grant funding, and Gables was able to obtain redacted documents revealing at least some of the confidential material from HUD by way of a Freedom 5 of Information Act ( FOIA ) request. Gables, the available for information public ERC perusal As a result, according to claims and to the be confidential confidential nature is of these documents has, in effect, been waived. ERC maintains, however, that the disclosure of its testing procedures in the prior litigation was inadvertent, that it has no control over the documents that HUD produced, and that it has taken all reasonable steps to maintain the confidentiality of these files. These measures are evidenced by that fact that it routinely insists upon the entry of protective orders in all cases involving the testing material to ensure that it can treat its testing files as confidential ; that its testers are required to sign confidentiality agreements relating to their work for the ERC; and that it goes to great lengths to protect its testing methodology internally, including storing the files in a secure area and maintaining relevant electronic documents on a protected network not accessible to the public. at 7). (Paper 99, Furthermore, ERC argues, there is no compelling reason to publish the testing files, particularly where doing so would be likely to thwart its anonymous testing efforts, thereby frustrating its mission. ERC has carried its burden of demonstrating that the testing documents reveal information akin to trade secrets, in that the sophisticated data collection it has developed provides 6 it a competitive edge in seeking funds to do its work, and public disclosure would not only jeopardize that advantage, but would also impinge on its ability to conduct the testing if more developers were measurements. aware of its methodology and particular In that respect, the testing methodology is akin to a trade secret, as ERC argues, and was properly designated as confidential. See Minter v. Wells Fargo Bank, N.A., 258 F.R.D. 118, 123 (D.Md. 2009) ( trade secrets are more than sensitive business information, they are sophisticated, innovative methods or inventions that are the result of human creativity and ingenuity ). The fact that similar materials may have been disclosed in another case is confidentiality, inadvertent. not automatically particularly fatal where the to a request disclosure for was See Hoechst Diafoil Co. v. Nan Ya Plastics Corp., 174 F.3d 411, 418 (4th Cir. 1999) ( some courts have embraced the rule that disclosure of information solely in a court s records will not, absent evidence of further publication, destroy the trade-secret status of that information ) (citing Gates Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 849 (10th Cir. 1993)). Nor does the fact that HUD provided some of the confidential information in response to a FOIA request alter its confidential nature in this litigation. 7 ERC has demonstrated that it has taken reasonable steps to maintain the confidentiality of these documents and that its mission could be compromised if available for public inspection. these documents were made The stipulated order regarding confidentiality provides, in pertinent part, that material may be designated as confidential when a party in good faith believes it contains . . . trade secrets or other confidential research, development, or commercial information. 1(a)). (Paper 55, ¶ The court is satisfied that ERC had such a good faith belief when it designated its testing files as confidential. Accordingly, Gables motion to make public the testing files will be denied, and its alternative motion to seal the confidential documents attached as exhibits to its motions for protective orders will be granted. III. Motion to Compel Discovery A. Background ERC served Gables with its first set of interrogatories on May 22, 2009, and its first set of requests for production of documents on May 15, 2009. In Interrogatory No. 4, ERC asked Gables to: Identify and fully describe . . . any evaluations of designs or site inspections you have conducted for each Subject Property, the persons involved in such evaluations, any alterations, repairs or retrofits related to accessibility taken by you, the results or recommendations of any 8 such actions or evaluations, and the dates of any such actions or evaluations. (Paper 109, Ex. 1, Attach. A, at 7). Similarly, ERC s fourth document request asked Gables to produce: For any Subject Property, all documents, created or modified from January 1, 1989 to the present, concerning issues related to accessibility for people with disabilities, including for example and without limitation: . . . . d. Documents concerning the retrofit or modification of properties based in whole or in part on consideration of accessibility for people with disabilities; [and] . . . . g. Documents concerning any studies, analyses, reviews, inspections, or surveys of issues related to accessibility for people with disabilities. (Paper 109, Ex. 1, Attach. B, at 8-9). In responding to the fourth interrogatory, Gables noted an objection to information privilege, the extent protected the work it from for disclosure product by doctrine, privilege or confidentiality. 69). calls the the or production attorney any other of client rule of (Paper 109, Ex. 1, Attach. C, at Gables identified, however, that it hired third-party consultants, such architectural plans properties at compliance with Disabilities as and various the Act. Peter Skarzenski design times Fair (Id. drawings during Housing at . 70). 9 . and . to construction Act A and rolling to review walk to its ensure Americans privilege with log reveals that Gables withheld a number of documents identified as Accessibility Field Observation Reports, claiming they were prepared in anticipation of litigation and therefore constituted protected work product. (Paper 109, Ex. 1, Attach. F). Based on the documents referenced in the privilege log, along with indicia of pre-complaint accessibility reviews and/or remediation inspect, measures ERC has in documents identified a Gables number of permitted properties it to that it believes were subject to such reviews and/or remediation. October 20, 2009, ERC served upon Gables a Rule On 30(b)(6) deposition notice reflecting, inter alia, that it would seek testimony regarding the substance of the accessibility reviews and remediation efforts that Gables identified in its privilege log as protected work product. Topics 6-8, 10-11). (Paper 109, Ex. 1, Attach. G, at According to ERC, Gables has since asserted that it will permit questions pertaining to the factual bases for its work product protection, but will instruct its various designated representatives not to answer questions concerning the substance resulting of pre-complaint remediation those activities. efforts, and accessibility the reviews documents and reflecting (Paper 109, Ex. 1, at 8-9).1 1 The Rule 30(b)(6) depositions have since been postponed pending resolution of the instant motion to compel. 10 During the November 19, 2009, motions hearing, the parties presented argument regarding the allegations in ERC s complaint. counsel for ERC distributed pattern and In support of its position, a document entitled Supporting the ERC s Pattern and Practice Claims. Ex. 1, Attach. I). practice Facts (Paper 109, The fifth item of that document stated as follows: In 2007, Gables itself hired outside consultants to test some of the Gables Subject Properties. Claiming that it performed these tests in anticipation of litigation, Gables has sought to shield the results of the tests from discovery. But the few documents Gables has produced for inspection (but not provided) concerning the tests show that the consultants themselves found multiple violations of the pertinent statutory provisions. (Id. at ¶ 5). At the hearing, counsel for ERC asserted, [t]hese are properties that are named in the complaint and I don t have a full list of them because they are not providing these documents. But that s something we re certainly going to pursue in discovery and probably in motions practice. 104, at 74-75). (Paper In response, counsel for Gables argued that the fifth item deals with the fact that Gables has hired outside consultants to assist them in the construction process, to advise them on fair housing matters and that will prove to be a break of the pattern and practice, if this is any pattern and practice, because there was a substantial change at that point 11 in time. now (Id. at 79-80). complains that Gables Based on this representation, ERC intends to rely on documents in defense of the pattern and practice allegations that it refuses to produce under claim of work product protection.2 On December 23, 2009, ERC served a motion to compel Gables compliance with its discovery obligations concerning its precomplaint accessibility reviews and remediate the subject properties. resulting efforts (Paper 109, Ex. 1). to ERC argues that because Gables had no notice of its intent to file this lawsuit prior to the time it was actually filed, the precomplaint steps it took to identify and remediate violative conditions at the subject properties could not have been done in anticipation of litigation, and thus documents evidencing these measures could not be protected work product. withheld documents are protected work 2 product, Even if the ERC contends, In opposing the motion to compel, Gables attempts to draw a distinction between documents created by Mr. Skarzenski in the ordinary course of business which they have and will continue to produce and upon which they will rely in their defense from allegedly protected documents, created in anticipation of litigation, that will not be relied upon in their defense. In its reply brief, ERC argues, inter alia, that there is no apparent distinction between the allegedly privileged and nonprivileged documents. Gables takes exception with the arguments advanced by ERC in its reply papers and has moved for leave to file a surreply to address what it claims are novel arguments asserted for the first time in reply. (Paper 110). Assuming, arguendo, that the arguments raised by ERC in its reply papers are novel, the court need not consider them in deciding its motion to compel. Accordingly, Gables motion for leave to file a surreply will be denied. 12 their production should be compelled because ERC has established substantial need. On January 22, 2010, Gables served its opposition papers, arguing that: (1) ERC waived its right to compel production of the documents pursuant to Discovery Guideline 9(c)(iii) and Local Rule 104.8, which were in effect at the time the privilege logs and discovery responses at issue were provided; (2) the documents were prepared in anticipation of litigation, insofar as Gables was aware that ERC had initiated law suits against several similarly-situated that lawsuit a against businesses it would and follow; reasonably (3) the believed documents constitute opinion work product and are, therefore, subject to absolute immunity; and (4) even if they are subject to only qualified immunity, ERC has failed to demonstrate substantial need for them. After conciliation efforts proved unsuccessful, on February 11, 2010, ERC filed a certificate pursuant to Local Rule 104.7, along with the attached motion papers. B. Analysis 1. (Paper 109). Waiver under Local Rules Gables initially observes that at the time it identified the documents it claims are protected, Discovery Guideline 9(c)(iii) of the Local Rules, which has since been repealed, provided that a party may serve a motion to compel within twenty 13 days after receiving, in response to a discovery request, a claim of privilege supported by factual detail establishing the basis for the claim in a privilege log. Further observing that, pursuant to Local Rule 104.8(a), a party must serve a motion to compel within discovery thirty response, days Gables of receiving contends that an ERC unsatisfactory has waived its right to compel production of the documents it now seeks by virtue of the fact that it failed to serve its motion to compel in a timely manner. ERC argues that Discovery Guideline 10(d)(iv), which replaced former Guideline 9(c)(iii) and took effect on December 1, 2009, pertinent notice of should part, govern. that documents The new [r]easonably withheld, Guideline promptly the provides, in receiving seeking party after disclosure should notify the party from whom disclosure is sought of any deficiencies in the particularization of the Local basis Rules, for any privilege/protection asserted. Discovery Guideline 10(d)(iv). ERC asserts that it provided reasonably prompt notice to Gables of (a) its disagreement with Gables assertion of work product protection for its accessibility review reports and its waiver argument, and (b) the absence of factual detail protection]. supporting Gables assertion (Paper 109, Ex. 1, at 22). [of work product As to the time requirement of Local Rule 104.8, ERC contends the rule can only 14 reasonably be interpreted as applying to a final, factually supported privilege log, not to each installment of a rolling privilege log which is not supported by facts. (Id. at 22). The Local Rules do not contain a provision specifically addressing whether a repealed Rule or Guideline that was in effect at the time an issue arose, rather than the Rule or Guideline in effect at the time the issue is considered by the court, should apply. The general rule applying to the Federal Rules of Civil Procedure is that amended rules govern, insofar as just and practicable, all proceedings in civil cases then In re Kaypro, 218 F.3d 1070, 1077 (9th Cir. 2000) pending. (quoting April 27, 1995, Order Adopting and Amending Rules, reprinted in Federal Civil Judicial Procedure and Rules 34 (West 2000)). The court need not resolve this issue here, however, because under the circumstances of this case strict application of either the former Discovery Guideline or Local Rule 104.8(a) is unwarranted. [W]hen a party refuses to produce documents during discovery on the basis that they are privileged or protected, it has a duty to particularize that claim. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 254 n. 2 (D.Md. 2008) (citing, inter alia, former Discovery Guideline 9(c)). A privilege log that does little more than briefly identify and describe each document and identify the basis for the refusal to 15 produce it, does not satisfy this requirement. Id. Pursuant to Fed.R.Civ.P. 26(b)(5), in addition to asserting a claim of privilege or protection, a party must describe the nature of the documents, communications, or things not produced or disclosed and do so in a manner that, without revealing the information itself privileged or protected, will enable other parties to assess the claim. simply identify that a Here, Gables privilege logs number of Accessibility Field Observation Report[s] prepared in anticipation of litigation by Mr. Skarzenski with respect to various properties were withheld. (Paper 109, Ex. 1, Attach. F). This falls well short of the mark set by Rule 26(b)(5), and it unreasonable for Gables to claim that ERC has waived its right to challenge the protected status of the withheld documents that Gables itself failed to describe with the requisite particularity. In other words, because Gables failed strictly to comply with the requirements of former Discovery Guideline 9(c), it lacks a credible basis for claiming that ERC has failed to do so. that strict compliance with any timeliness Considering also requirement is complicated in this case by the fact that the ongoing discovery process is occurring in phases; that Gables was placed on notice of ERC s position with respect to the documents at issue within a reasonable period of time after work product protection was asserted; and that Gables has failed to identify any significant 16 prejudice inuring to it as a result of what was a relatively short delay, the fact that ERC served its motion to compel beyond thirty days after it received notice of the asserted protection does not constitute a waiver. former Discovery Guideline 9(c) To the extent that and/or Local Rule 104.8(a) require otherwise, the court waives their application here. See Local Rule 604. 2. Work Product Protection Federal Rule of Civil Procedure 26(b)(3) provides, in pertinent part, that [o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation representative or for trial (including by or the for another other party or its party s attorney, consultant, surety, indemnitor, insurer, or agent). Where work product protection is invoked, it is that party s burden to show, as to each document, that the work product in question was: (1) prepared by, or under the direction of, an attorney and, (2) was prepared in anticipation of litigation. Rambus, Inc. v. Infineon Techs. AG, 220 F.R.D. 264, 272 (E.D.Va. 2004) (citing Hickman v. Taylor, 329 U.S. 495 (1947); In re Grand Jury Proceedings, 102 F.3d 748, 750 (4th Cir. 1996)); see also E.I. Du Pont de Nemours and Co. v. Kolon Industries, Inc., No. 3:09cv58, 2010 WL 1489966, *3 (E.D.Va. Apr. 13, 2010). 17 As the Fourth Circuit explained in National Union Fire Insurance Co. v. Murray Sheet Metal Co.: Proper application of the work product rule requires recognition of two competing policies. On the one hand, fairness in the disposition of civil litigation is achieved when the parties to the litigation have knowledge of the relevant facts, and therefore the discovery rules are given a broad and liberal treatment. On the other hand, our adversary system depends on the effective assistance of lawyers, fostered by the privacy of communications between lawyer and client and the privacy in development of legal theories, opinions, and strategies for the client. 967 F.2d 980, 983 (4th Cir. 1992) (quoting Hickman, 329 U.S. at 507). Shortly after National Union Fire Insurance Co. was decided, the court set forth a framework for determining the availability of work product protection: First, we must determine whether the work product was made in anticipation of litigation. If not, then the inquiry ends because the material is not protected. If the material was prepared in anticipation of litigation, then we must determine whether the material is opinion work product or non-opinion work product. Opinion work product prepared in anticipation of litigation is absolutely immune from discovery. Finally, if the material is nonopinion work product, then it may be discovered upon a showing of substantial need. See National Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 983-84 (4th Cir. 1992). 18 Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332, 355 (4th Cir. 1992).3 Here, President Gables and submits Chief the Operating ERC s motion to compel. affidavit Officer of Sue Executive Ansel in Vice opposing (Paper 190, Ex. 2, Attach. A). Ms. Ansel avers that, beginning in 2005, she became aware through various media industry reports, leaders conferences, that ERC had filed and a discussions number of with lawsuits against national developers of multi-family housing and would continue to file more lawsuits against companies like Gables. (Id. at ¶ 7). At around the same time, she explains, Gables was from converting a public company to a privately held company, and its investors sparked internal discussions about the potential approach developer, to for Gables litigating irrespective properties. to be sued against of the (Id. at ¶ 14). given every condition ERC s national of that publicized multifamily developer s Following a series of internal 3 The court vacated its decision in Sandberg upon the unopposed request of one of the parties. See Sandberg v. Va. Bankshares, Inc., 1993 WL 524680 (4th Cir. Apr. 7, 1993). Nevertheless, a vacated opinion has precedential effect if it has been validated by the court of appeals. See Alvarado v. Bd. of Trustees of Montgomery Cmty. Coll., 848 F.2d 457, 459 (4th Cir. 1988). Sandberg has been cited with approval by the Fourth Circuit on multiple occasions. See, e.g., Horne v. OwensCorning Fiberglas Corp., 4 F.3d 276, 280 (4th Cir. 1993); see also RLI Ins. Co. v. Conseco, Inc., 477 F.Supp.2d 741, 746 n.7 (E.D.Va. 2007). 19 discussions, Ms. Ansel consulted with representatives of companies involved in litigation with ERC regarding names of potential accessibility constructed projects experts in who Gables suggested was Pete Skarzenski[.] could assess portfolio, the and already [o]ne name (Id. at ¶ 16). Mr. Skarzenski was retained by Gables in April 2006 to make assessments of Gables apartment complexes so Gables might understand its potential exposure to any lawsuit filed by the Equal Rights Center or any other plaintiff who may allege that Gables buildings do not comply with their view of the law. (Id. at ¶ 17). advice, and Ms. Ansel sought Mr. Skarzenski s judgment and not simply his compilation of facts about the Gables portfolio ; her intent was to keep Mr. Skarzenski s work confidential Gables. within a (Id. at ¶ 18). conducting privileged properties, and small group 2007, assessments thereafter Skarzenski shortly was continue his work. Mr. after directly of provided trade, at Gables Gables with written (Id. at ¶ 19). litigation by completed In commenced, Gables Mr. attorneys to (Id. at ¶ 20). Skarzenski s by this retained affidavit (Paper 190, Ex. 2, Attach. L). architect individuals He began his work immediately by reports memorializing his work product. October of has been is also provided by Gables. Since 2004, Mr. Skarzenski, an the 20 owner of Pete Skarzenski Consulting, a business specializ[ing] in multi-family housing and commercial buildings, including accessibility reviews, project plan reviews, multi-family project specifications, and post-construction accessibility observations and repair. at ¶ 2). A significant percent[age] of his (Id. consulting business relates to design and construction requirements of the Fair Housing Act and the Americans with Disabilities Acts, and includes providing advice to lawyers, to sellers and buyers of properties, and to persons and entities construction of multifamily housing. 2006, Mr. Skarzenski avers, undertaking (Id. at ¶ 9). Susan Ansel new In April with Gables Residential ( Gables ), which has also separately hired me to help it with its regular design and construction activities, engaged [him] multifamily to conduct properties, post-construction specifying that analyses his work of its would be conducted in anticipation that Gables might be sued by the Equal Rights Center or a similar plaintiff just national housing providers had recently been sued. 10). as other (Id. at ¶ Mr. Skarzenski asserts that the reports he created for Gables reflect his thoughts and impressions of possible issues that could be raised by a plaintiff organization and do not solely recite facts. ERC protected contends under (Id. at ¶ 14). that the the work Skarzenski product 21 reports doctrine could because not they be were neither prepared by or at the behest of an attorney. Gables counters by citing cases holding that documents need not be prepared by or at the behest of an attorney for work product protection to apply. ERC argues that the reports could not have been prepared in anticipation of litigation, as it had not even threatened to file this suit at the time they were prepared. Gables asserts that they were prepared because similarly- situated developers had been sued by ERC and it was reasonable for them to assume that a lawsuit was forthcoming. Regardless of whether they were prepared in anticipation of litigation, ERC maintains, the reports must be disclosed because there would otherwise Gables. be no evidence of remediation measures taken by Gables claims that the reports are opinion work product and, therefore, are entitled to absolute immunity. This motion raises a number of complex issues with respect to the application of the work product doctrine about which the Fourth Circuit has not definitively spoken and other courts are divided. There is, however, a relatively straightforward and practical way of resolving the dispute. Preliminarily, it must be noted, work product protection extends only to documents and tangible things. Fed.R.Civ.P. 26(b)(3). Thus, Gables cannot invoke work product protection as a basis for withholding the underlying facts identified in the allegedly protected documents in their answers to interrogatories 22 or during Rule 30(b)(6) depositions. On the other hand, the only information that ERC needs, for purposes of this suit, relates to properties that were remediated following Mr. Skarzenski s reports. already has or will properties, and can conduct draw inspections its own of ERC either the conclusions subject based on its observations for properties that have not been remediated. As to any properties that were remediated, however, the inspections will not reveal the nature of any changes that were made. ERC clearly findings has of a substantial potentially Skarzenski s reports subsequently violative where taken. need To the for disclosure conditions observed remediation extent that Thus, of any in Mr. measures the were reports may constitute opinion work product, Mr. Skarzenski s opinions as to what might be asserted in a hypothetical lawsuit against Gables are inconsequential and may be redacted. What must be produced, however, properties are the facts noted for any that were subsequently remediated. In the seminal case of Hickman v. Taylor, 329 U.S. 495, 497 (1947), the Supreme Court saw its delicate and difficult task as striking a balance preventing unwarranted attorney s work, on between the excursions the one competing into hand, and the interests privacy the public of of an policy supporting reasonable and necessary inquires, on the other. Here, the court finds this balance 23 would be achieved by requiring Gables to provide a supplemental answer to ERC s fourth interrogatory found at paper 109, Ex. 1, Attach. A, at 7 within thirty days of the date of the accompanying order. Work product protection information. may not Additionally, be for any invoked to properties shield this that were remediated, Gables will provide redacted documents, as requested by ERC s fourth document request found at paper 109, Ex. 1, Attach. A, at 7 within thirty days of the accompanying order. ERC s motion to compel will be denied, however, with respect to any of Mr. Skarzenski s reports related to properties for which remediation measures were not subsequently taken. IV. Conclusion For the foregoing reasons, Defendants motion to designate discovery material as public will be granted in part and denied in part, and their alternative motion for leave to seal will be granted; Plaintiff s motion to compel discovery will be granted in part and denied in part; and Defendant s motion to file a surreply will be denied. A separate order will follow. ________/s/_________________ DEBORAH K. CHASANOW United States District Judge 24
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