United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
AUDREY G. FLEISSIG, District Judge.
Defendants bring a motion (Doc. No. 53) to quash a subpoena issued by Plaintiffs to Pelopidas, LLC, a non-party public relations company hired by Defendants' attorney, or in the alternative, to grant a protective order against disclosure of the materials in question. Defendants argue that all the materials requested by Plaintiffs are protected by the attorney-client privilege or the work product doctrine. For the reasons stated below, the Court finds that the attorney-client privilege does not extend to a public relations consultant on the facts of the case. However, the Court finds that the materials are protected by the work product doctrine, and Plaintiffs have not met their burden to overcome the protection provided by that doctrine. Accordingly, the motion to quash shall be granted.
The Bridgeton Landfill ("Landfill"), a federal Superfund Site since 1990, is an inactive landfill that is part of a larger complex of landfills, located in Bridgeton, Missouri. The Landfill is owned and managed by Defendant Bridgeton Landfill, LLC, a subsidiary of Defendant Republic Services, Inc. In late 2010, elevated temperatures were detected in some of the Landfill's gas extraction wells. After testing, it was discovered that a "subsurface smoldering event" was occurring deep within the southern part of the Landfill. A subsurface smoldering event is a chemical reaction, usually caused by the decomposition of materials within a landfill, and characterized by temperatures exceeding 170 degrees Fahrenheit. In early 2012, local residents began noticing a foul odor apparently emanating from the Landfill, and the odor remains an ongoing issue in the vicinity of the Landfill.
The events at the Landfill have given rise to extensive litigation against Defendants. As of the date of this Order, Defendants have been sued 38 times since 2013 regarding activities and events at the Landfill. See Doc. No. 53 at 1-2. The situation at the Landfill has also been the focus of intense media scrutiny. In order to help manage Defendants' response to media coverage, in 2013, defense counsel hired a national public relations firm, which in turn hired Pelopidas to serve as local public relations consultants for counsel and Defendants.
Plaintiffs filed this putative class action against Defendants in federal district court on August 15, 2014, asserting negligence and nuisance claims arising out of the odor, pollution, and emissions allegedly emanating from the Landfill. On February 24, 2015, Defendants received a subpoena directed at Pelopidas, requesting all "documents, communications, records, tapes, recordings, transcripts, directives, e-mails, powerpoints, texts, scripts, agreements and/or memoranda concerning or relating to any public relations work relating to the fires and/or smoldering event" at the Landfill. (Doc. No. 62-2 at 5.) In response, Defendants produced 15 documents, along with a privilege log, while withholding 81 purportedly privileged documents and videos. As required by Local Rule 37-3.04(A), the parties conferred in good faith, but were unable to reach an accord with regard to the disputed materials. On March 27, 2015, Defendants filed the instant motion to quash, which the parties thereafter fully briefed. On May 5, 2015, the Court ordered Defendants to produce for in camera inspection all the disputed materials, to which order Defendants timely complied, and the Court has reviewed all the withheld materials.
THE PARTIES' ARGUMENTS
Defendants argue that the withheld materials are protected by the attorney-client privilege or, in the alternative, the work product doctrine. Regarding the attorney-client privilege, Defendants assert that an attorney-client relationship existed between counsel, Pelopidas, and Defendants, and that Pelopidas' services were necessary to aid counsel in their rendering of legal advice to Defendants.
In support of this argument, Defendants provide the declarations of William G. Beck and Jessica E. Merrigan, both of whom serve as counsel for Defendants. (Doc. Nos. 55-1and 55-2.) In his declaration, Mr. Beck states that negative publicity around Defendants had created an environment that threatened to make defending the litigation far more difficult than it would otherwise be, and he engaged Pelopidas to help mitigate that risk. Ms. Merrigan states that she worked on an "almost-daily basis" with Pelopidas as part of the litigation team, that no statement was released by Pelopidas without counsel's prior approval, and that Pelopidas' role was not restricted to providing routine public relations advice, but rather, was to consider how all communications would affect prospective litigation. (Doc. No. 55-2 at 1-2.) Defendants also assert that all communications between Pelopidas and Defendants were "made to convey the information to counsel in its representation of Defendants, " and thus, all such communications were protected by the attorney-client privilege. (Doc. No. 54 at 10.)
In the alternative, Defendants maintain that the documents and videos are protected by the work product doctrine. Defendants assert that where, as here, a "public relations firm needs to know the attorney's strategy in order to advise as to public relations, and the public relations impact bears, in turn, on the attorney's own strategizing as to whether or not to take a contemplated step in the litigation, " the work product doctrine applies. (Doc. No. 54 at 10.) Defendants contend that all of Pelopidas's work was directed and overseen by counsel, and is protected as work product because it was prepared in anticipation of litigation by an agent of Defendants' counsel. Defendants further assert that Plaintiffs can show neither a substantial need for the disputed materials, nor an undue hardship that would result without the materials, because the materials at issue would not assist Plaintiffs in establishing the elements of negligence or nuisance alleged by Plaintiffs.
In response, Plaintiffs argue that the attorney-client privilege is limited to legal advice, and Defendants have failed to establish that Pelopidas's public relations work was legal in nature. Plaintiffs maintain that a "media campaign is not legal advice, and an attorney's participation in such a campaign does not render internal communications about the public relations campaign privileged." (Doc. No. 62 at 11.) Plaintiffs argue that the communications and documents prepared by Pelopidas were simply part of an effort to "spin the media" in favor of Defendants. ( Id. at 8.) Plaintiffs also assert that the work product doctrine does not protect Pelopidas' public relations activities, because, while the doctrine may protect documents "prepared for one's defense in a court of law, it does not protect documents that were merely prepared for one's defense in the court of public opinion." ( Id. at 13.)
Plaintiffs also assert that the privilege log submitted by Defendants was insufficient to evaluate the propriety of Defendants' claims, as not enough information was provided to determine whether an attorney authored certain documents, or was merely a passive recipient of the documents. As such, Plaintiffs asked the court to review the disputed materials in camera to evaluate Defendants' claims.
In reply, Defendants reiterate their argument that the materials are protected by both the attorney-client privilege and work product doctrine. In support of their argument that the public relations work performed by Pelopidas was central to their legal strategy, Defendants describe in more detail how the situation at the Landfill led to "frequent and impassioned public debate" as well as intense media coverage regarding the risks the Landfill may pose to public health and the environment. (Doc. No. 65 at 4.) When counsel engaged Pelopidas, the Landfill had already been sued twice and was threatened with other suits, including an enforcement action by the Missouri Department of Natural Resources. Defendants argue that it was evident that additional litigation would be filed in the near future, and defense counsel determined that "participating in the public debate would be essential to prevent additional and frivolous litigation;" thus, they engaged Pelopidas to guide them as they commenced active participation in the ongoing public debate. ( Id. at 5.) Defendants submitted with their reply an affidavit from Pelopidas (Doc. No. 65-1), as well as an amended declaration from Mr. Beck (Doc. No. 65-2), each of which elaborate on the assertion that Pelopidas was engaged for litigation purposes, and not for general public relations consulting. Mr. Beck indicates in his declaration that Pelopidas was brought onto the litigation team in order to guide efforts to provide consistent and accurate information to the public, and with a primary goal of not simply affecting public opinion, but of protecting Defendants during ongoing litigation. Defendants argue that Pelopidas and counsel were "[a]ttempting to influence media and create a legal climate" where individuals would be less likely to sue the Landfill, and that such activities are "well within the confines of an attorney's duties" and thus, the resulting documents and communications are privileged. (Doc. No. 65 at 6-8.)
Defendants go on to argue that the effect of public statements on pending and anticipated litigation was always Pelopidas's primary consideration, and all documents and communications were protected work product reflecting counsel's input. Furthermore, Defendants assert that Plaintiffs cannot overcome that protection, as Plaintiffs "have neither shown nor even attempted to argue a substantial need for the work product." ( Id. at 12.) Defendants also argue that Plaintiffs could not establish a need for the materials, since the complaint involves only issues of negligence and nuisance, and the subpoenaed materials would not aid in determining either liability or damages in the ...