Know when to hold 'em: minimizing disclosure of corporate environmental information.

I. INTRODUCTION

Complying with the vast amount of environmental laws is a daunting task for a corporation today. A corporation may find it necessary to hire an environmental consulting company to conduct an environmental audit to assess its compliance with environmental laws and determine any appropriate adjustments in procedure. If the audit raises concerns regarding the corporation's compliance, the corporation may request environmental review status reports, prepared at certain intervals, to track the corporation's efforts to correct the concerns raised in the audit. (1) The corporation's officers may think the best course of action is to comply with environmental laws and keep their environmental matters confidential. Nevertheless, the corporation could be compelled to disclose the audit and reports if subsequent litigation arises. (2)

Increases in the degree of sanctions and complexity of environmental laws, and the corresponding increases in prosecutions for violations of environmental laws, put pressure on corporations to comply with applicable laws and regulations. (3) To facilitate compliance, many corporations rely on in-house counsel, officers, and employees as well as outside counsel, experts, and consultants. (4) These actors generate various types of environmental information for the corporation. Some of this information may contain sensitive issues that the corporation would rather not disclose.

This Comment examines the reasons for creating corporate environmental information, the available means for keeping certain types of information confidential, and the measures a corporation may utilize to avoid unnecessary disclosure of sensitive environmental reports. Part II provides a general overview of the reasons various actors generate environmental information on behalf of a corporation. This environmental information includes mandatory and voluntary environmental audits, internal environmental investigations (usually triggered by a government inquiry or initiation of a government investigation), statutory reporting requirements to regulatory agencies, and requests for information from regulatory agencies or lenders. This Part also details some of the corporate purposes for keeping certain environmental details confidential, and the incentives for corporations to voluntarily disclose their environmental analyses. Part III surveys the availability and applicability of state environmental self-audit privilege or immunity laws, and the opposition to these laws by the Environmental Protection Agency (EPA). Additionally, this Part summarizes the best practices to avoid waiver of the state self-audit privilege or immunity laws, while weighing the risk that EPA may preempt the state law and require disclosure of the self-audit. Part IV examines the attorney-client privilege, work product doctrine, and self-critical analysis privilege in the corporate environmental setting. Part IV also discusses the best practices to preserve these protections when the corporation has a variety of in-house and external actors creating sensitive environmental information. Part V concludes that, although a confidentiality guarantee is impossible, the best method to guard against unintentional and unnecessary disclosure of sensitive environmental reports is the careful forethought and planning of a knowledgeable attorney.

II. REASONS FOR ENVIRONMENTAL REPORTS

Significant parts of environmental legislation enacted over the past two decades expanded the scope of civil and criminal environmental liability in an effort to deter environmental violations. (5) Currently, almost every federal environmental statute and most state environmental statutes authorize criminal penalties in addition to civil penalties. (6)

The federal government has also increased its civil and criminal investigations and prosecutions based on these statutes. For example, during fiscal year 2000 (FY 2000), EPA issued a record number of administrative complaints, compliance orders, and field citations, almost double the number from the year before. (7) In FY 2000, EPA conducted 660 civil investigations, referred 368 civil judicial cases to the United States Department of Justice (DOJ), initiated 477 criminal cases, referred 236 criminal cases to DOJ, and charged 360 defendants. (8) Continuing this trend, EPA plans to conduct at least 15,000 inspections, 550 criminal investigations, and 150 civil investigations in 2001. (9) The gravity of the sanctions and the ardent enforcement by the federal government worries corporate officers who could incur criminal liability for the corporation's environmental violations. (10) These concerns about liability lead corporations to enlist the aid of their own employees and outside personnel to help them obtain or remain in compliance with environmental laws.

A. Reasons to Produce Corporate Environmental Information

Various reasons exist for creating environmental documents. One reason is public environmental information laws. The information laws require a regulated entity to provide specific reports, data, facts, and documents to certain regulatory audiences, and this information is normally freely available to the general public, with narrow exceptions. (11) Another reason is many commercial transactions, such as real estate transfers, lender requirements, mergers, and acquisitions, require an environmental due diligence report, which a third party environmental consultant may prepare. (12) Further, a corporation may conduct its own internal investigations, usually following a government inquiry or initiation of a government investigation. (13) In each of these settings it is important for corporate counsel (in-house or outside) to guard against avoidable disclosure of sensitive environmental documents.

B. Reasons to Disclose Environmental Information

In certain situations, a corporation may want to disclose its environmental information to the public or the government. Formal corporate environmental reports, similar to annual reports, are becoming popular for corporations that wish to demonstrate to the public that they operate in a socially and environmentally responsible manner. (14) Another reason to voluntarily disclose environmental information is to utilize EPA's Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations (15) final policy statement. EPA's policy encourages regulated entities to voluntarily discover, disclose, and correct violations of federal environmental requirements. (16) If the self-disclosing entity meets all the terms of the policy, which include prompt disclosure and expeditious correction of the environmental violations, EPA offers to eliminate or substantially reduce the gravity component of civil penalties. (17) In addition, EPA will not recommend criminal prosecution. (18) During FY 2000, "430 companies disclosed potential violations at nearly 2200 facilities, an increase over the previous year, when 260 companies disclosed violations at 989 facilities." (19) In the time between the audit policy's inception in January 1996 and Spring 1999, EPA reported that 470 companies disclosed environmental violations under the audit policy at more than 1880 facilities. (20) Of the 470 companies, EPA reduced or waived penalties for 166 companies, determined 80 of the companies were ineligible for audit policy relief, and continued to investigate the balance of the companies. (21)

C. Reasons to Keep Environmental Information Confidential

Although voluntary disclosure of corporate environmental information is the most favorable course of action in some circumstances, corporate counsel should also consider the detrimental effects disclosure could have on the corporation. If, after weighing the risks, the corporation decides to voluntarily disclose environmental reports, then the attorney must police the disclosure so the corporation only discloses the necessary environmental information. (22) For example, corporate environmental information may contain trade secrets or other confidential business or financial information. (23) Some environmental laws limit public disclosure of records that contain or relate to trade secrets. (24) The Freedom of Information Act (FOIA) (25) also exempts "trade secrets and commercial or financial information obtained from a person and privileged or confidential." (26) In addition, EPA stated it "will withhold the [audit policy] self-disclosures from release under [FOIA], assuming the self-disclosure qualifies for FOIA exemption, until ... the Agency and the self-discloser have formally settled the case." (27) However, in cases where EPA determines that release of the document poses no harm to on-going attempts to settle the case, it may choose to release a self-disclosure prior to settlement. (28) EPA will release the document only if the submitter did not make a Confidential Business Information (CBI) claim or the submitter made such a claim, EPA rejected it, and EPA consulted its headquarters on the decision to release. (29) Thus, a company that self-discloses environmental information containing trade secrets that qualify for an exemption under FOIA must still make a successful CBI claim to EPA before EPA will agree to withhold a self-disclosure under the audit policy. (30)

At least one commentator expresses concern that the public disclosure limits in environmental laws and the FOIA exemption are not sufficient because the possibility of inadvertent disclosure by regulatory officials is still high. (31) Overall, any corporation that voluntarily self-discloses environmental information containing confidential business information or trade secrets takes a risk that the regulatory agencies will not withhold the information from the public.

Although voluntary disclosure is sometimes advantageous for a corporation, counsel must guard against an overly broad disclosure. In addition, if the disclosure contains confidential business information or trade secrets, counsel must monitor the regulatory agencies to keep the agency from publicly disclosing confidential details. Because outside consultants or experts generate most environmental information, counsel should plan to employ all laws, rules, and privileges available to protect confidential environmental information before she retains the outside actor. Specifically, the attorney should make use of the state environmental self-audit privilege or immunity law, if any, and the attorney-client privilege, work product doctrine, and self-critical analysis privilege.

III. STATE ENVIRONMENTAL SELF-AUDIT PRIVILEGE OR IMMUNITY LAWS

Environmental compliance self-audits are one of the most effective means a company can employ to investigate problems and take proactive steps to ensure compliance with environmental laws and regulations. (32) Self-audits, however, may disclose environmental violations. If EPA obtains the audit, it could impose civil or criminal sanctions on the corporation even though the corporation promptly corrects the violation. (33) Therefore, before a corporation undertakes an audit of this type, the attorney should explore whether the state has an environmental self-audit privilege or immunity law. (34)

A Price Waterhouse LLP survey, released April 6, 1995, reported that a majority of businesses implement auditing programs even though a risk exists that audits may not be confidential. (35) Nonetheless, almost two-thirds of the businesses responding to the survey with audit programs in place "said they would expand their programs if penalties were eliminated for problems that the companies uncover, report, and correct." (36) At least twenty states enacted legislation either creating a qualified privilege for environmental self-audits or granting immunity from prosecution to companies that voluntarily disclose violations discovered by self-audits. (37) These states reason that privilege or immunity laws encourage corporations to participate in environmental compliance audit programs that facilitate early correction of environmental violations. (38) While many differences exist in the specifics of these laws, most set forth similar requirements to use the privilege or to qualify for the immunity or reduced penalties. (39) The regulated entity must conduct an audit that reveals environmental violations, voluntarily report the violations to authorities within a specified amount of time, and correct the violation within a designated time-frame. (40)

EPA is "firmly opposed to the establishment of a statutory evidentiary privilege" or "blanket immunity" for environmental audits. (41) EPA states that its self-disclosure policy, which eliminates or reduces civil penalties and lessens the likelihood of criminal prosecution for those companies that meet the conditions of the policy, is a "positive alternative" to privileges or immunities. (42) In support of its position, EPA maintains that the state audit laws could be used to "shield evidence of violations of federal environmental law as well as criminal misconduct, deny the public its right to know useful information affecting its health and the environment, drive up litigation costs, and create an atmosphere of distrust between regulators, industry and local communities." (43) Recently, EPA reaffirmed its position against state audit privilege or immunity laws and cited a study by the National Conference of State Legislatures (NCSL) for support. (44) The NCSL study concluded that no evidence exists "to support the claim that state audit privilege and immunity laws encourage facilities to begin auditing, increase the number of audits they perform or disclose more violations." (45)

EPA threatened states that have broad audit laws with losing the authority to run certain federally delegated programs, such as Clean Air Act (46) delegation, unless the state laws comply with certain criteria. (47) The first criterion is that "state officials must have the ability to obtain immediate and complete injunctive relief against polluters, regardless of whether they conduct environmental audits." (48) The second criterion prefers state audit laws that exempt privilege or immunity when doing so would cause delegation to fail. (49) The final criterion is an EPA recommendation that the "audit laws avoid making the privilege applicable to criminal investigations, grand jury proceedings and prosecution," (50) and that the laws should "protect the public's right to get information about noncompliance and violations of reporting requirements as well as bring citizen suits for violations of federal law." (51) Thus, even in states that have self-audit privilege or immunity laws, the protection may be limited if the audit reveals a violation of federal environmental laws and federal agencies could discover the audit in federal proceedings. (52)

For the state audit privilege or immunity law to be helpful to a corporation, the attorney in control of the self-audit must comply with the specific conditions of the law and ensure the corporation does not inadvertently waive the privilege or immunity. A corporation may waive the state audit privilege or immunity by communicating with third parties regarding the audit, introducing the audit or a portion of it in a proceeding, or disclosing the audit to a government agency in a matter unrelated to the substance of the audit. (53) The attorney should also keep in mind, if the audit reveals federal violations, EPA may preempt the state law and demand disclosure of the environmental self-audit. (54)

IV. COMMON LAW PRIVILEGES AND DOCTRINE

All states recognize the attorney-client privilege and work product doctrine to promote the confidentiality of certain environmental information, regardless of whether the state has an environmental audit privilege or immunity law. (55) Some states also allow the self-critical analysis privilege, but it is not as widely accepted as the attorney-client privilege and work product doctrine. (56) Neither the privileges nor the doctrine guarantee the confidentiality of all documents and information generated in environmental matters. (57) A corporation, however, can effectively utilize the privileges or doctrine if it meets the specific requirements of each.

When a corporation faces environmental compliance issues, it usually must involve its in-house or outside counsel and other third parties, such as consultants or experts in the environmental field. Preserving the attorney-client privilege, work product doctrine, and self-critical analysis privilege for the corporation with regard to these actors and the information they report is essential to keeping sensitive environmental information confidential. Thus, when the corporation and its attorney involve outside consultants and experts, they must understand the accompanying risks and carefully plan these outside actors' duties to preserve the privileges and doctrine for as much of the information as possible. In the same way, using in-house counsel instead of outside counsel also requires the corporation to take some extra steps to ensure it can employ the common law privileges and doctrine in environmental situations. (58)

A. Attorney-Client Privilege

The attorney-client privilege protects confidential communications between a client and their attorney as well as legal advice from the attorney to the client. (59) The attorney-client privilege prohibits disclosure of communications in any setting without the client's authorization. (60) In United States v. United Shoe Machinery Corp., (61) the court stated specific elements required to establish the privilege, (62) and other courts have set forth similar requirements. (63) The basic elements of the attorney-client privilege are as follows: first, the information must be a communication; (64) second, the communication must occur between or among privileged persons; (65) third, the communication must take place for the purpose of obtaining or providing legal assistance; (66) fourth, the parties must communicate in confidence; (67) and finally, the client must not waive the privilege. (68) The analysis below addresses each element, and includes the best practices to meet each element when the corporation and its attorney involve an outside environmental consultant or expert.

1. A Communication

The first element requires the information for which the corporation seeks the privilege to be a communication. (69) This means that the attorney-client privilege only protects the communication of information between the attorney and the client, not the underlying facts communicated (if one can learn the facts from a source other than the privileged communication). (70) In Upjohn Co. v. United States, the Supreme Court stated "[t]he client cannot be compelled to answer the question, `What did you say or write to the attorney?' but may not refuse to disclose any relevant fact within his knowledge merely because he incorporated a statement of such fact into his communication to his attorney." (71) Thus, application of the privilege should put "the adversary in no worse position than if the communications had never taken place." (72)

The lack of attorney-client privilege protection for facts is a significant consideration for the attorney when she hires an outside environmental consultant or expert. The attorney must be aware that, even if the attorney-client privilege applies to the information provided by the consultant or expert, it does not also protect the underlying facts of that information from discovery. (73) If a consultant compiles a technical or factual report, the court must determine whether "the purpose of the report was to put in usable form information obtained from the client." (74) The court in Olson v. Accessory Controls & Equipment Corp. (75) recognized that "[d]rawing a line between technical, factual information that is necessary for legal advice and technical information that is not essential to such advice requires a fact-specific inquiry. This is particularly true in the context of reports compiled by outside consultants." (76) Thus, the court found the report of an environmental company hired by the employer's attorney, which compiled facts concerning potential sources of contamination on the plant property, fell within the attorney-client privilege because the "report was connected intimately to the rendering of legal advice." (77)

If, however, the consultant only gathers data, the attorney-client privilege does not apply to the resulting information because it is factual and obtained from sources other than the client. (78) The court in United States Postal Service v. Phelps Dodge Refining Corp. found the attorney-client privilege does not protect underlying factual data, or the resulting opinions or recommendations, from disclosure when consultants base their opinions on factual and scientific evidence they generate through studies and collect through observation of the physical condition of the property because the information did not come through client confidences. (79) The court went on to say that "[t]here are few, if any, conceivable circumstances where a scientist or engineer employed to gather data should be considered an agent within the scope of the privilege since the information collected will generally be factual, obtained from sources other than the client." (80) Although the court made this broad statement, it based its ultimate conclusion on a fact-specific review of the documents themselves and determined that "none of the documents revealed any confidential communications by the defendants or their attorneys to the consultants." (81)

The cases demonstrate that, while the attorney-client privilege does not apply to underlying factual information, courts engage in a fact-specific inquiry regarding documents that contain factual information to determine whether "the purpose of the report was to put in usable form information obtained from the client." (82) Thus, to meet the communication element, the best practices for the corporate attorney are to be aware that the opposing side may discover the underlying facts of the consultant's work, and to keep the factual documents separate from the consultant's other communications with the client. Most importantly, the attorney should employ the consultant to aid in providing legal advice, not just to gather data.

2. Between Privileged Persons

The communication must take place between or among privileged persons to meet the second element of the attorney-client privilege. Privileged persons, of course, include the attorney and the corporate client, (83) but non-lawyer third parties are privileged persons only if they assist the attorney in providing legal advice. (84) Thus, when an environmental consultant communicates with the client, the consultant must be helping the attorney provide legal advice, not just giving the client the consultant's advice. (85) In addition, the attorney should hire the consultant because that emphasizes the consultant is assisting the attorney in providing legal advice, even though the case law does not expressly state this rule. (86)

In United States v. Kovel, the court recognized "the complexities of modern existence prevent attorneys from effectively handling clients' affairs without the help of others" (87) and that "others" does not mean only "menial or ministerial" employees. (88) The court concluded that the attorney-client privilege could apply to communications between the client and an accountant retained by the client's attorney so long as the communication is in furtherance of providing legal advice by the attorney. (89) However, if the advice sought is that of the non-lawyer third party, rather than the lawyer, no privilege exists. (90) Although the Kovel case involved a financial review where an accountant was a privileged third party, it is analogous to the environmental review situation where an environmental consultant is necessary to assist the attorney in providing legal advice to the client. (91) Therefore, the communications between the client and the environmental consultant are probably privileged as long as the consultant acts on behalf of the attorney, not as an independent consultant for the client, provided the communication meets the rest of the requirements. (92)

No express rule exists that the attorney must hire the consultant to consider the consultant's communications with the client privileged, but a court could find this condition relevant. (93) Thus, the attorney's safest approach is to hire the environmental consultant or expert to stress that the consultant is assisting the attorney in providing legal advice. Arguably, the client should be able to hire the consultant for the express purpose of assisting the attorney in providing legal advice, but no court has directly addressed this issue. The Eighth Circuit had the opportunity to decide the hiring issue in In re Beiter Co., (94) but instead found that the attorney-client privilege applied to communications between the client and a consultant hired by the client, by determining that the consultant was the functional equivalent of the client's employee. (95)

To meet the privileged persons element for communications between the client and an environmental consultant or between the attorney and an environmental consultant, the attorney should retain the environmental consultant for the purpose of giving legal advice to the client and all communications should occur for that purpose. If, however, the client retained an environmental consultant before the attorney became involved, the attorney-client privilege may not apply to the client's prior communications with the consultant. (96) Once the client retains the attorney, the attorney should take measures to clearly document that all subsequent communications between the client and the consultant will take place to give information to the attorney, who will use the information to provide legal advice to the client. The attorney can clearly document the consultant's change in duties by placing a memorandum on the consultant's work regarding the legal advice in the client's file with the purpose and intent to preserve the attorney-client privilege.

3. Purpose of Obtaining or Providing Legal Assistance

The third element, that the purpose of the communication must be to obtain or provide legal assistance, is an important consideration regarding the corporation's decision whether to use in-house or outside counsel in environmental matters. This element is also critical to the corporation's or attorney's decision to involve consultants and experts in the environmental matter.

Because in-house counsel assists the corporation in a number of non-legal or business matters, a court could conclude that the corporation's communication with an in-house attorney was not for legal advice. For example, in United States v. Chevron U.S.A., Inc., (97) the court held that the attorney-client privilege did not apply to the corporation's environmental compliance review status reports, which contained its environmental compliance audit. (98) The court emphasized Chevron never indicated that the corporation made the communication to the attorney in the attorney's capacity as legal advisor rather than as a business advisor. (99) The court stated "it is not enough to assert the privilege merely because an attorney was present or was one of the parties to whom the communication was made." (100) Thus, if the corporation uses its in-house counsel for the environmental matter, it should specifically request legal advice from the attorney. Using outside counsel to oversee environmental audits or investigations is the safest route because it emphasizes the intent of the corporation to obtain legal advice and eliminates the risk involved in clearly distinguishing the in-house counsel's role as legal advisor from his general management role. (101)

The legal advice element also necessitates that the attorney retain consultants or experts for the specific purpose of assisting her in providing legal advice to the corporate client. (102) The attorney-client privilege does not apply to a consultant's documents if the consultant prepared the documents in the course of providing environmental services to the corporation, rather than for the purpose of assisting the attorney in providing legal advice to the company. (103) The attorney-client privilege does not protect these documents even if the attorney pays the consultant (104) or the consultant prepared the document during negotiations to settle legal matters. (105)

To meet the legal advice element, the corporate client and attorney should take numerous precautions. The corporate client should request legal advice from the attorney concerning the specific subject matter at issue and authorize the attorney to hire any necessary consultant to assist in providing that legal advice. After the attorney retains the consultants or experts specifically for legal assistance to the client, she must make sure that all documents and communications from the consultants or experts occur only for the purpose of assisting the attorney in providing legal advice to the client. To accomplish this result, the attorney should insist that the consultant or expert only prepare documents or communicate with the client in response to specific requests from the attorney and only share the resulting information with the attorney. (106)

4. Communication Made in Confidence

Parties must communicate in confidence and the client must intend the communication to remain confidential to meet the fourth element of the attorney-client privilege. If the client knowingly allows a non-privileged third party to hear the communication, the attorney-client privilege does not apply to that communication. (107) Thus, when the attorney knows her client intends for communications to remain confidential, she should allow only the persons assisting in providing legal advice to the client to be present during communications. (108) In the same way, the attorney should keep all documents regarding confidential client communications separate from general documents and strictly limit access to them. Confidential documents include any consultant's reports, which the attorney should not distribute beyond the corporation managers directly involved in the environmental investigation or audit. Furthermore, an environmental consultant or expert should not provide both assistance to counsel for legal purposes and to the company for general environmental purposes, because it is difficult to keep compliance reports separate from confidential material, while preserving confidentiality. (109)

5. Absence of Waiver

The final element necessary to preserve the attorney-client privilege for a confidential communication is the absence of waiver. Waiver occurs when the client voluntarily or inadvertently discloses the confidential communication. (110) The power to waive the privilege in the corporate context "rests with the corporation's management and is normally exercised by its officers and directors." (111) Thus, waiver of the attorney-client privilege is unlike establishment of the privilege, in which all levels of employees may be the corporate "client." (112)

Waiver by voluntary disclosure normally occurs when the corporation provides environmental information to others pursuant to information requests, subpoenas, or statutory self-reporting requirements. (113) However, courts disagree whether a permanent corporation waiver is limited to the specific disclosure or extends to everything related to that communication. (114) In Diversified Industries, Inc. v. Meredith, (115) the Eighth Circuit held that only a limited waiver of the attorney-client privilege occurred, for purposes of subsequent private litigation, when Diversified voluntarily disclosed privileged material to the Securities and Exchange Commission (SEC) pursuant to an agency subpoena in a separate and nonpublic SEC investigation. (116) Consequently, the material Diversified voluntarily disclosed to SEC remained privileged and Diversified did not have to disclose the privileged material in the subsequent litigation. (117)

On the other hand, the D.C. Circuit, in Permian Corp. v. United States, (118) did not allow a limited waiver regarding prior disclosure of communications to SEC when the Department of Energy sought the documents in a compliance investigation and forced Permian to disclose the material. (119) The court reasoned that, even though voluntary cooperation with SEC is a laudable activity, it is hard to see how allowing "limited waiver" for this disclosure serves the interests underlying the attorney-client privilege of full and frank communication between attorney and client. (120) In a later case, the D.C. Circuit went further in setting forth an express rule that a party who reveals part of a privileged communication to gain advantage in litigation waives the attorney-client privilege as to all other communications relating to the same subject matter. (121) However, the court recognized "if the party's prior disclosures, even to an adversary, resulted from judicial compulsion, courts will not imply a waiver." (122)

Because case law regarding limited waiver is unsettled, the best practice is to assert the attorney-client privilege if the privileged information is requested by anyone. This forces the requester to obtain a court order for disclosure of the information, which preserves the privilege. (123) The corporation and its attorney must consider the risks and expenses of forcing a court order and only pursue that course of action if the need for confidentiality greatly outweighs the risks of disclosure. (124)

Communications in the presence of an outside consultant or expert also create a risk that courts will conclude the client voluntarily waived the attorney-client privilege by not maintaining confidentiality. (125) To guard against this type of waiver, the attorney, client, and consultant must clearly demonstrate the outside consultant or expert is assisting the attorney in providing legal advice to the client when the consultant is present for communications with the client or told about communications with the client. (126) Otherwise, the attorney-client privilege does not attach to the communication because the consultant or expert is a nonprivileged third party. (127)

The attorney should also take other general precautions to guard against waiver of the attorney-client privilege. For instance, the attorney should stamp all documents for which the client seeks the privilege with the words "privileged and confidential" and strictly limit dissemination of the documents. (128) The attorney should also explain to all those involved in the environmental matter the importance of maintaining confidentiality by not disclosing the environmental information without consulting the attorney. (129) While none of these measures, alone or together, guarantee the attorney-client privilege will apply, taking these precautions demonstrate the corporation's intent to keep the information confidential and may prevent a careless or casual action that could cause an inadvertent waiver of the privilege.

6. Summary

A corporate attorney should routinely and consciously seek to preserve the attorney-client privilege in environmental matters. When the attorney involves an outside consultant or expert in a matter, the attorney should adhere to procedures designed to keep attorney-client communications confidential. Ideally, the attorney would follow the procedures described below.

The first step consists of the corporation formally and specifically asking the attorney for legal advice regarding a specific environmental matter. This request is particularly important if the corporation wants in-house counsel to provide the legal advice because the written request will distinguish future duties from the normal management duties of the in-house counsel. (130)

Next, the corporation should authorize the attorney to retain environmental consultants or experts to assist the attorney in providing the legal advice, and the attorney must specifically retain the consultants or experts for this purpose only. In addition, the outside consultants or experts should prepare documents or communications only in response to requests from the attorney, give the documents only to the attorney, and keep all matters strictly confidential. (131)

To keep all documents and communications with the client made for the purpose of providing legal advice to the client strictly confidential, the attorney should stamp documents "privileged and confidential" and limit distribution and access to only those people directly involved. (132) The attorney must also instruct the client on the importance of confidentiality. (133) To limit the risk of inadvertent disclosure by the client, the attorney should stress that the client should not discuss or disclose the confidential material without consulting the attorney.

Most importantly, the attorney must consider the risk of waiver in all situations. The risk of waiver usually arises when another regulatory agency requests the information for a purpose that will benefit the client. (134) If the client voluntarily discloses the information, he may permanently waive the attorney-client privilege regarding that information and possibly all related information. (135)

Finally, in structuring procedures to enhance the availability of the attorney-client privilege, the attorney must consider the laws of the states that will apply to the environmental matter because slight variations in the way states view the attorney-client privilege may exist. The factors that generally determine which state's law applies to the environmental matter are where the corporation filed for incorporation, where the corporation conducts its principal business, and where the acts occurred that gave rise to the environmental information. (136)

B. Work Product Doctrine

The Supreme Court first recognized the work product doctrine, often referred to as a qualified immunity, in Hickman v. Taylor. (137) The Supreme Court reasoned that the work product doctrine is essential to allow "a lawyer [to] work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel." (138) The work product doctrine protects materials prepared in anticipation of litigation from discovery and disclosure at trial. (139) The materials include counsel's research, analysis, legal theories, and mental impressions, including notes and memoranda of witnesses' statements. (140) Courts consider a lawyer's research, analysis, and mental impressions to deserve special protection and only order production of these private papers upon a strong showing of need by the other party. (141)

Federal Rule of Civil Procedure 26(b)(3) codified the work product doctrine and protects "documents and tangible things ... prepared in anticipation of litigation or trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, etc.)." (142) The party seeking discovery can overcome this protection if it shows "substantial need of the materials" and that the party is "unable without undue hardship to obtain the substantial equivalent of the materials by other means." (143) Even when the party seeking discovery can make this showing, the rule directs the court to "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." (144) The work product doctrine only protects documents and tangible things, not the facts contained in them. (145)

The two main elements of the work product doctrine are the preparation of the material in anticipation of litigation and the absence of waiver of the protection.

1. In Anticipation of Litigation

The primary issue in determining work product protection is whether a person produced the document or other tangible in anticipation of litigation. Although no bright line rule exists on how imminent litigation must be, courts generally do not require that litigation commenced at the time of the creation of the documents, (146) nor must the litigation actually materialize, (147) for the work product doctrine to apply. Courts describe the test as requiring at least a "real possibility" of litigation at the time of preparation of the document or, in other words, the document must be "prepared with an eye to some specific litigation." (148)

When applicable, the federal work product rule also protects materials prepared by people other than attorneys. (149) Therefore, if outside consultants and experts prepare tangibles while working on environmental issues for the corporation in anticipation of litigation, the work product doctrine protects the tangibles from disclosure. (150) To clearly show that the consultant or expert is generating materials in anticipation of litigation, the best practice is for the attorney to select and retain the consultant or expert. When determining whether the work product doctrine excludes an expert's report from discovery, courts may look to whether the attorney retained the consultant. (151) In State v. Ybarra, the court found it significant that the attorney retained the expert to investigate and produce a report regarding the technical aspects of the specific litigation and determined the expert was part of the attorney's investigative staff. (152) Therefore, the work product doctrine protected the report from discovery. (153)

A corporation may reasonably anticipate litigation in many environmental situations where actors produce documents in connection with reports or audits at the request of a regulatory agency or after an agency contacts the corporation regarding a possible environmental violation. (154) For example, the court in Martin v. Bally's Park Place Hotel & Casino found an employer reasonably anticipated litigation at the time he commissioned a consultant to prepare a report after the Occupational Safety and Health Review Commission (OSHA) contacted an employer about alleged toxic emissions. (155) Thus, the court held the work product doctrine sheltered the consultant's report from discovery. (156) Moreover, in Briggs & Stratton Corp. v. Concrete Sales & Services, (157) the court found Briggs reasonably contemplated litigation when responding to an EPA order requiring the clean-up of an industrial site because of the "extensive costs involved in the clean-up and the possibility of identifying other potentially responsible parties to share in the costs." (158) Consequently, the court held the work product doctrine applied to the documents generated by Briggs's personnel, consultants, and attorneys during the course of responding to the EPA order. (159)

When a corporation produces environmental audits or other environmental information on some potentially systematic basis or without an indication of preparation for some future litigation, however, these materials do not come under work product protection. (160) As one court explained, "materials prepared in the ordinary course of business, pursuant to regulatory requirements, or for some other non-litigation purpose are not prepared in anticipation of litigation." (161) In Occidental Chemical Corp. v. OHM Remediation Services Corp., the work product doctrine did not protect documents prepared by an engineering consultant during his work on an environmental cleanup project in the corporation's action against the remediation company for breach of the environmental cleanup contract, because the consultant was not hired to assist the attorney in providing legal advice to the corporation. (162) The court emphasized that the consultant prepared the documents "contemporaneously with the problems that arose during defendant's performance of the remedial work" (163) and contained information the plaintiff "obtain[ed] or compile[d] in the ordinary course of business." (164) Overall, the court held that, if a party or its attorney prepares a document in the ordinary course of business, it is not protected by the work product doctrine, even if the party is aware that the document may also be useful in the event of litigation. (165)

Therefore, if the party creates documents in anticipation of some future litigation, the attorney should record why she anticipates litigation and how the documents relate to her legal theories at the time of creation. The best practice is for the attorney to direct all reports and investigations by outside consultants or experts. In addition, reports by outside consultants or experts are more likely to be protected by the work product doctrine when they are "couched in terms that relate to the attorney's formulation of legal opinions, instead of merely reciting factual results." (166)

2. Absence of Waiver

Waiver is an important issue under the work product doctrine. Unlike the attorney-client privilege realm--where waiver occurs almost any time the communication is disclosed (167)--under the work product doctrine the key question is not whether the client and attorney kept the materials within the privileged relationship, but whether they kept the materials from opposing parties. (168) Primarily, the work product doctrine addresses the vitality of the adversary system, and disclosure to a third party does not necessarily constitute a waiver of that protection. (169) Additionally, to the extent that the attorney and client do not have conflicting interests, the attorney may be able to claim the work product privilege even if the clients have waived their claims. (170)

Nonetheless, "when a corporation elects to [fully] participate in a voluntary disclosure program," (171) it bears the risk that a court will imply a waiver of the work product privilege because the corporation "necessarily decide[d] that the benefits of participation outweigh the benefits of confidentiality for all files necessary to a full evaluation of its disclosures." (172) The voluntary disclosure means the corporation "foregoes some of the traditional protections of the adversary system in order to avoid some of the traditional burdens that accompany adversary resolution of disputes." (173) When the corporation or its attorney "voluntarily discloses the contents of otherwise protected work product to someone with interests adverse to ... those of the client, knowingly increasing the possibility that an opponent will obtain and use the material," (174) a court may find the corporation waived work product protection. The corporation also risks waiver if it releases work product with no "intent to limit its future disposition." (175)

Consequently, to preserve the work product privilege, the attorney should take care to ensure that the corporation does not disclose documents prepared in anticipation of litigation in any way that a court could interpret as allowing those with interests adverse to the client to use the materials against the client. The best practices are for the attorney to closely control the reports or investigations of outside consultants or experts, mark all resulting documents "prepared in anticipation of litigation--work product material," and strictly limit the distribution of the work product material to persons who need to know the information and who do not have interests adverse to the client. (176)

3. Additional Considerations in the Litigation Context

In the litigation context, the attorney should also keep in mind Federal Rule of Civil Procedure (FRCP) 26(b) (4) (A) and (B), which directs that the opposing party may "depose any person who has been identified as an expert whose opinions may be presented at trial ... [and] may ... discover facts known or opinions held by an expert retained ... who is not expected to be called as a witness at trial." (177) Federal Rule of Civil Procedure 26(b)(4)(B) states, however, that discovery of facts or opinions from a consulting or nontestifying expert is allowed only upon a showing of "exceptional circumstances," which courts rarely find exist. (178) As an additional consideration, FRCP 26(b)(4) is inapplicable to an expert who was also an actor or observer regarding the events that form the basis of the litigation, so no barrier exists to discovery regarding that expert. (179)

Therefore, if the corporate attorney anticipates litigation in an environmental matter, she should arrange for a different testifying expert from the consultant expert. (180) The attorney should give the testifying expert only the information needed for his testimony, while the non-testifying consultant expert may work closely with the attorney regarding the attorney's theories about the case. (181) This structure may prevent forced disclosure of the consulting expert's opinions on issues relevant to the litigation, such as compliance and the adequacy of past practices, but the underlying facts known by the consulting expert are still discoverable. (182)

4. Summary

A corporate attorney should strive to limit discovery of environmental materials prepared in anticipation of litigation by invoking the work product doctrine. The best practices to achieve work product protection for materials prepared in anticipation of litigation, particularly materials created by an outside consultant or expert, are described below.

When the corporation reasonably anticipates litigation, the corporation should make a formal, written request to the attorney to undertake an investigation of the situation "in anticipation of litigation." (183) The corporation must also give the attorney the authority to retain environmental consultants or experts to assist her in providing legal advice on the matter in which the corporation anticipates litigation. (184)

Throughout the environmental matter, outside consultants or experts should prepare reports and investigations only at the request of the attorney. Additionally, the consultant or expert should couch the resulting documents in terms that address "the attorney's formulation of legal opinions, rather than merely reciting facts." (185)

The attorney must control the investigation or audit and all resulting documents. Taking the following precautions may assist the attorney in demonstrating that the materials are work product: stamp the documents with "prepared in anticipation of litigation--work product material," strictly limit distribution of the documents to only those persons who need to know the information, and guard against disclosing the materials to those with interests adverse to the client. (186) Additionally, the attorney should do everything possible to protect against the assumption that the attorney or consultant created the material in the "ordinary course of business." (187)

Because the adverse party may discover all of the testifying expert's notes, drafts, and files, the attorney should employ both a consulting expert and a testifying expert. The non-testifying, consulting expert assists the attorney in interpreting environmental data and forming theories about the case. (188) Conversely, the testifying expert receives only the information needed for his testimony to limit the range of facts known by the expert on cross examination. (189)

C. Self-Critical Analysis Privilege

Currently, only a few jurisdictions recognize the self-critical analysis privilege, also called the self-evaluative privilege, in the environmental context. (190) Consequently, an attorney should not rely on this privilege without careful research of the applicable state's statutes or case law regarding the self-critical analysis privilege. (191) The underlying theory of this privilege is that the public interest served by confidential self-critical analysis outweighs the need for disclosure, in the absence of evidence of extraordinary circumstances. (192) Accordingly, parties asserting the self-critical analysis privilege must generally demonstrate that materials satisfy four criteria. (193) First, the information must result from critical self-analysis undertaken by the party seeking protection. (194) Second, the public must have a strong interest in preserving the free flow of the type of information sought. (195) Third, the information must be of the type whose flow would be curtailed if discovery is allowed. (196) Finally, the client must prepare the document or request the document with the expectation that it would stay confidential, and it is in fact confidential. (197) Courts that address the application of the self-critical analysis privilege in the environmental context generally conduct case-specific analyses and make narrow holdings. (198)

Application of the self-critical analysis privilege in an environmental situation could significantly increase the amount of information a corporation may keep confidential. Because much of the environmental information generated by corporations and their representatives, consultants, or experts during an environmental audit or investigation is self-analysis, the self-critical analysis privilege could protect many documents from disclosure that the attorney-client privilege or work product doctrine cannot. (199) Corporations, however, cannot easily meet the elements of this privilege because the corporation must show that the public interest in preserving the confidentiality of self-critical environmental information outweighs the public's need for disclosure of that information. (200) If the alleged environmental violation is particularly egregious, a corporation will likely find it difficult to prove the public interest leans toward confidentiality of information related to the violation instead of disclosure.

Courts generally do not favor application of the self-critical privilege in the environmental context. (201) For example, the court in United States v. Dexter Corp. (202) found that a corporate defendant cannot use the self-critical analysis privilege against disclosure of self-evaluative documents in an action brought by the United States to enforce the Clean Water Act. (203) The court reasoned Congress made an explicit declaration of public policy in the Act "that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States" (204) and application of the self-critical privilege in this action would effectively impede the Administrator's ability to enforce the Clean Water Act, which is contrary to the stated public policy. (205)

Alternatively, at least one court recognized the self-critical privilege in the environmental context. In Reichhold Chemicals, Inc. v. Textron, Inc., (206) the court determined that the self-critical analysis privilege applied to a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (207) plaintiffs environmental reports, unless the defendant could demonstrate extraordinary circumstances or special need. (208) The CERCLA plaintiff prepared the reports "after-the-fact" for purposes of candid self-evaluation and analysis of cause and effect of past pollution. (209) The reports also evaluated plaintiffs possible role, as well as the roles of others, in contributing to pollution at the site. (210) The court emphasized the privilege applied only to reports prepared after-the-fact of the alleged violation because subsequent, retrospective reports are generally not relevant in a negligence action. (211) The court reasoned that subsequent reports are unlike reports made prior to the alleged violation because prior reports may show an actor had actual knowledge of the harm that would or could result from a course of action, and nevertheless the party deliberately chose to act. (212)

Overall, if the attorney wishes to employ this privilege, she should stress, in addition to the other elements of the privilege, that the retrospective analysis sought is not relevant to the stated claim. She should also explain that public knowledge of such analysis may discourage the candid self-assessment that fosters the compelling public interest in observance of the law and environmental responsibility.

The attorney may raise the self-critical analysis privilege as a defense to discovery of a corporation's self-evaluation documents where it is available. Nevertheless, the attorney must realize courts generally view privileges narrowly to guard against barriers to a truthful outcome, and she must prepare herself and the client for the strong arguments against this privilege. (213)

V. CONCLUSION

Although it is not possible to guarantee confidentiality of all corporate environmental information, the careful forethought and planning of a knowledgeable attorney is the best method to guard against unintentional and unnecessary disclosure of sensitive environmental reports. In the context of environmental law practice, where attorneys frequently retain experts and consultants to provide information and give guidance regarding environmental issues, the attorney must carefully consider all the risks involved when outside parties communicate with the corporation and develop environmental documents. The attorney and corporation may initially minimize these risks by conducting detailed discussions regarding the specific environmental needs of the corporation and by setting out a plan to designate the responsibilities of each person involved in the matter. To preserve confidentiality in the greatest number of cases, discussions should also include how to meet all the requirements of the state environmental audit privilege or immunity, if applicable, and how to preserve the attorney-client privilege, work product doctrine, and self-critical analysis privilege. This type of careful planning affords the corporation the maximum protection, and it guards against disclosure of sensitive environmental reports through inadvertent waiver of the attorney-client privilege, work product doctrine, or self-critical analysis privilege.

(1) United States v. Chevron U.S.A., Inc., No. CIV.A.88-6681, 1989 WI, 121616, at *2 (E.D. Pa. Oct. 16, 1989).

(2) Id. at *5-*7.

(3) Jay G. Martin, Conducting a Successful Internal Environmental Investigation, 6 ENVTL. LAW. 673, 673 (2000); Ethan H. Jessup, Environmental Crones and Corporate Liability: The Evolution of the Prosecution of "Green" Crimes by Corporate Entities, 33 NEW ENG. L. REV. 721, 721-24, 741-72 (1999).

(4) Martin, supra note 3, at 704-05 n. 158.

(5) Id. at 673.

(6) Id. at 677; see also Clean Air Act, 42 U.S.C. [section] 7413(c) (1994) (imposing criminal penalties for knowing violations); Federal Water Pollution Control Act, 33 U.S.C. [section] 1319(c) (1994) (imposing criminal penalties for knowing and negligent violations); Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [section] 9603(b), (c), (d)(2) (1994) (imposing criminal penalties); Resource Conservation and Recovery Act of 1976, 42 U.S.C. [section] 6928(d), (e) (1994) (imposing criminal liability for knowing violations); Toxic Substances Control Act, 15 U.S.C. [subsection] 2615-2616 (1994) (imposing civil penalties up to $25,000 per violation per day and criminal penalties for knowing or willful violations); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [section] 136l(b) (1994) (imposing criminal liability for knowing violations).

(7) Press Release, Tanya Meekins, EPA Releases FY 2000 Enforcement and Compliance Assurance Data 1 (Jan. 19, 2001), available at http://www.epa.gov/oeca/r-20.pdf.

(8) Id. at 1-2.

(9) EPA Fiscal 2001 Plan for Compliance, Creating Credible Deterrent to Pollution, Daily Env't Rep. (BNA), Feb. 25, 2000, at E-1, WL 38 DEN E-1, 2000.

(10) Martin, supra note 3, at 689 (discussing the "responsible corporate officer" doctrine and how federal law enforcement has increasingly focused on corporate officers in prosecuting environmental crimes).

(11) Robert F. Blomquist, Information Disclosure and Access, in 1 ENVIRONMENTAL LAW PRACTICE GUIDE [section] 4.01[3], at 4-8 (Michael B. Gerrard ed., 2000); see also, e.g., Clean Air Act, 42 U.S.C. [section] 7414(a), (c) (1994).

(12) Martin B. Wasser & David Jacoby, Consultants and Contractors, in 1 ENVIRONMENTAL LAW PRACTICE GUIDE, supra note 11, [section] 5.01[2][a], at 5-7 to 5-10.

(13) Robert S. Bennett et al., Internal Investigations of Potential Criminal Misconduct Under Environmental Laws, 25 Env't. Rep. (BNA) 1887, 1887 (1995).

(14) David W. Case, Legal Considerations in Voluntary Corporate Environmental Reporting, 30 Envtl. L. Rep. (Envtl. L. Inst.) 10,375, 10,376 (2000).

(15) 65 Fed. Reg. 19,618 (Apr. 11, 2000).

(16) Id. at 19,618.

(17) Id. at 19,620.

(18) Id.

(19) Steve Cook, Fines Totaled $224.6 Million in FY 2000 For Criminal, Civil Actions Pursued by EPA, 32 Env't. Rep. (BNA) 191, 191 (Jan. 26, 2001).

(20) Audit Policy Evaluation and Proposed Revisions Near Completion, AUDIT POLICY UPDATE (EPA), Spring 1999, at 1, available at http://epa.gov/oeca/ore/auditupd.html (last updated Feb. 26, 2001).

(21) Id.

(22) See, e.g., In re Doe, 662 F.2d 1073, 1081 (1981) (warning that voluntary disclosure to someone with adverse interests may waive work product protection).

(23) Blomquist, supra note 11, [section] 4.02[3][e], at 4-24.

(24) Id. [section] 4.01[3], at 4-9; see also, e.g., Clean Air Act, 42 U.S.C. [section] 7414(c) (1994) (limiting disclosure of trade secrets under the act); Federal Water Pollution Control Act, 33 U.S.C. [section] 1318(b) (1994) (same); Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. [subsection] 136h(b), 136f, 136g (1994) (same); Toxic Substances Control Act, 15 U.S.C. [section] 2613(b)(B), (c) (1994) (same).

(25) 5 U.S.C. [section] 552 (2000).

(26) Id. [section] 552(b)(4).

(27) Memorandum from Steven A. Herman, Assistant Administrator for Enforcement and Compliance Assurance, to the OECA Office Directors et al. (Dec. 19, 2000), available at http://es.epa.gov/oeca/sahmemo.html; see also Pamela Najor, Air Pollution: Company Name Withheld Under Agreement by EPA on CAA New Source Review Violations, Daily Env't Rep. (BNA), Nov. 3, 1999, at A-2, WL 212 DEN A-2, 1999.

(28) Memorandum from Steven A. Herman, supra note 27.

(29) Id.

(30) Id.

(31) Donald Stever, The Private Sector's Need for Environmental Secrecy: Product Regulation and the Secrecy of Proprietary Information, 2 N.Y.U. ENVTL. L.J. 224, 228 (1993).

(32) David R. Erickson & Sarah D. Mathews, Environmental Compliance Audits: Analysis of Current Law, Policy, and Practical Considerations to Best Protect Their Confidentiality, 63 UMKC L. REV. 491, 521 (1995).

(33) See id. (commenting that EPA will intervene to enforce environmental laws even when a state's law may protect industry with a state audit privilege).

(34) An additional consideration is the applicability of evidentiary rules regarding subsequent remedial measures, although not as protective as a rule of privilege or immunity. See Federal Rules of Evidence 407, which provides that evidence of subsequent remedial measures is not admissible in a trial to prove negligence or culpable conduct. A corporation may, however, offer this evidence to prove ownership, control, or feasibility of precautionary measures. FED. R. EVID. 407. Thus, the Rule does not guarantee prevention of discovery because whether a protective order is granted is controlled by the court's discretion. Alvin K. Hellerstein, A Comprehensive Survey of the Attorney-Client Privilege and Work Product Doctrine, in CURRENT PROBLEMS IN FEDERAL CIVIL PRACTICE 1996, at 589, 771 (Barry H. Garfinkel ed., 1996).

(35) Cheryl Hague, Enforcement: Companies Conducting Audits Despite Lack of Privilege Laws, Lawyer Says, 82 Daily Env't Rep. (BNA), Apr. 28, 1995, at D-6, WL 82 DEN D-6, 1995; Erickson & Mathews, supra note 32, at 521.

(36) Robert Jonardi, Director of Price Waterhouse's Environmental Services Group, quoted in Enforcement: Elimination of Penalties Could Boost Environmental Self-Auditing, Survey Says, Nat'l Env't Daily (BNA), Apr. 7, 1995, at D4, WL 4/7/95 NED D4.

(37) Courtney M. Price, Environmental Audits, in 1 ENVIRONMENTAL LAW PRACTICE GUIDE, supra note 11, [section] 6.05A[1], at 6-37 & n.96.2 (listing states with environmental audit laws).

(38) Id.

(39) Id.

(40) Id.

(41) EPA, Voluntary Self-Disclosure Policy Incentives for Self-Policing, ENVIRONMENTAL PROTECTION AGENCY OFFICE OF COMPLIANCE FACT SHEET SERIES, at http://es.epa.gov/oeca/ccsmd/file7.html (last updated July 2, 1996).

(42) Id.

(43) Id.

(44) NCSL Report Shows No Increase in Environmental Audits Due to State Privilege, Immunity Laws, AUDIT POLICY UPDATE (EPA), Spring 1999, at 8, available at http://epa.gov/oeca/ore/auditupd.html (last updated Feb. 26, 2001).

(45) Id.

(46) 42 U.S.C. [subsection] 7401-7671q (1994 & Supp. III 1997).

(47) Price, supra note 37, [section] 6.05A[1][h], at 6-38.9 (citing Environmental Audits: State Immunity, Privilege Laws Examined for Conflicts Affecting Delegated Programs, Daily Env't Rep. (BNA), Sept. 18, 1996, at AA-1).

(48) Id. [section] 6.05A[1][h], at 6-38.10.

(49) Id.

(50) Id.

(51) Id.

(52) See Erickson & Mathews, supra note 32, at 521 (discussing the limits of the Voluntary Environmental Audit Protection Act, S. 582, 104th Cong. [section] 3801 (1995) and the scope of EPA's Interim Policy).

(53) Price, supra note 37, [section] 6.05A[1][d], at 6-38.5.

(54) Erickson & Mathews, supra note 32, at 521.

(55) See 23 AM. JUR. 2D Depositions and Discovery [section] 64 (1983) (stating that federal and comparable state rules protect work product materials); Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (declaring the attorney-client privilege as the oldest privilege in the common law); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 352 (1989) (observing that "[v]irtually every American jurisdiction forbids attorneys to disclose client information").

(56) DANIEL RIESEL, ENVIRONMENTAL ENFORCEMENT: CIVIL & CRIMINAL [section] 3.04(3)(b)(iii), at 3-40 to 3-41 (2000); Price, supra note 37, [section] 6.03[5], at 6-22.

(57) See Price, supra note 37, [section] 6.03[5] at 6-22 (acknowledging the limits of the attorney-client privilege, work-product doctrine, and self-evaluative privilege).

(58) Id. [section] 6.03[3][f][i],[ii] at 6-15.

(59) RIESEL, supra note 56, [section] 3.04(3)(b)(i), at 3-31.

(60) Hellerstein, supra note 34, at 605; MODEL RULES OF PROF'L CONDUCT R. 1.6 (1999).

(61) 89 F. Supp. 357 (D. Mass. 1950).

(62) Id. at 358-59. The court stated the privilege applies only if

   (1) the asserted holder of the privilege is or sought to become a client;
   (2) the person to whom the communication was made (a) is a member of the
   bar of a court, or his subordinate and (b) in connection with this
   communication is acting as a lawyer; (3) the communication relates to a
   fact of which the attorney was informed (a) by his client (b) without the
   presence of strangers (c) for the purposes of securing primarily either (i)
   an opinion of law or (ii) legal services or (iii) assistance in some legal
   proceeding, and not (d) for the purpose of committing a crime or a tort:
   and (4) the privilege has been (a) claimed and (b) not waived by the
   client.

Id.

(63) United States v. Chevron U.S.A., Inc., No. CIV.A.88-6681, 1989 WL 121616, at * 6 (E.D. Pa. 1989) (noting that Judge Wyzanski's description of the attorney client privilege in United Shoe Machinery Corp. is the most frequently cited formulation of the privilege).

(64) Price, supra note 37, [section] 6.03131[a], at 6-11.

(65) Id.

(66) .Id.

(67) Id. [section] 6.0313][a], at 6-12.

(68) Id.

(69) Id.

(70) Upjohn Co. v. United States, 449 U.S. 383, 395 (1981).

(71) Id. at 395-96 (quoting City of Philadelphia v. Westinghouse Elec. Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)).

(72) Id. at 395.

(73) Id.

(74) Fed. Trade Comm'n v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980).

(75) 757 A.2d 14 (Conn. 2000).

(76) Id. at 23.

(77) Id. at 28.

(78) United States Postal Serv. v. Phelps Dodge Ref. Corp., 852 F. Supp. 156, 162 (E.D.N.Y. 1994).

(79) Id. at 162.

(80) Id.

(81) Id.

(82) Fed. Trade Comm'n v. TRW, Inc., 628 F.2d 207, 212 (D.C. Cir. 1980).

(83) Upjohn Co. v. United States, 449 U.S. 383, 395 (1981) (declaring that the corporate "client" includes all levels of employees if such employees are directed by corporate management to communicate with an attorney to facilitate the attorney in providing legal advice to the corporation).

(84) United States v. Kovel, 296 F.2d 918, 921 (2nd Cir. 1961).

(85) Id. at 922.

(86) ELIZABETH GLASS GELTMAN, A COMPLETE GUIDE TO ENVIRONMENTAL AUDITS [section] 4.2, at 191-92 (1997).

(87) Kovel, 296 F.2d at 921.

(88) Id.

(89) Id. at 922.

(90) Id.

(91) GELTMAN, supra note 86, [section] 4.2, at 191.

(92) Id.

(93) See, e.g., United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982) (holding that communications from a client to independent accountants waived the attorney-client privilege); United States v. Pipkins, 528 F.2d 559, 563 (5th Cir. 1976) (holding that, in a forgery case, handwriting style samples submitted to handwriting expert were not confidential, and thus waived); United States v. Brown, 478 F.2d 1038, 1040 (7th Cir. 1973) (holding that memorandum drafted by attorney summarizing notes and legal judgments submitted to accountant was not intended to be confidential).

(94) 16 F.3d 929 (8th Cir. 1994).

(95) Id. at 938-40. The court determined the independent consultant hired by the client, who was intimately involved in the client's unsuccessful development and was the client's sole representative at meetings with potential tenants and local officials, was the functional equivalent of the client's employee for purposes of the attorney-client privilege. Id.

(96) See Wasser & Jacoby, supra note 12, [section] 5.04, at 5-33 (stating that when a client retains a consultant for review of a permit and litigation ensues regarding the permitted activity).

(97) No. CIV.A.88-6681, 1989 WL 121616 (E.D. Pa. 1989).

(98) Id. at *6.

(99) Id.

(100) Id.

(101) See Price, supra note 37, [section] 6.03[3][f][ii], at 6-15 (providing that use of outside counsel reinforces the client's desire to obtain legal advice).

(102) Id.

(103) Id.

(104) In re Grand Jury Matter, 147 F.R.D. 82, 85-86 (E.D. Pa. 1992) (holding that, although the expert was paid by the law firm from an escrow account, the consultant's waste management plan to achieve regulatory compliance was not protected by the attorney-client privilege because the purpose was not to legally advise the client).

(105) Occidental Chem. Corp. v. OHM Remediation Serv. Corp., 175 F.R.D. 431,436-37 (W.D.N.Y. 1997) (holding that the consultant was hired by chemical corporation to formulate remediation plan, not to assist attorneys in rendering legal advice, so the documents prepared by the consultant were not protected by the attorney-client privilege).

(106) See Erickson & Mathews, supra note 32, at 522 (recommending that the attorney manage communications between consultants, the attorney, and the client).

(107) Price, supra note 37, [section] 6.03[f], at 6-15.

(108) Id. [section] 6.03[g], at 6-16.

(109) Bennett et al., supra note 13, at 1889.

(110) United States v. AT&T Co., 642 F.2d 1285, 1299 (D.C. Cir. 1980).

(111) Commodity Futures Trading Comm'n v. Weintraub, 471 U.S. 343, 348 (1985).

(112) Upjohn Co. v. United States, 449 U.S. 383, 392 (1981) (extending the protections of attorney-client privilege to mid-level and lower-level corporate employees).

(113) RIESEL, supra note 56, [section] 3.04, at 3-35.

(114) Id.

(115) 572 F.2d 596 (8th Cir. 1978).

(116) Id. at 611.

(117) Id.

(118) 665 F.2d 1214 (D.C. Cir. 1981).

(119) Id. at 1219-20.

(120) Id. at 1220.

(121) In re Sealed Cases, 676 F.2d 793, 818 (D.C. Cir. 1982).

(122) Id. at 817 (citing Transamerica Computer Co. v. IBM Corp., 573 F.2d 646, 651-52 (9th Cir. 1978)).

(123) RIESEL, supra note 56, [section] 3.04[3], at 3-35.

(124) Id.

(125) Wasser & Jacoby, supra note 12, [section] 5.04, at 5-34. This is particularly problematic when the client retains a consultant prior to the initiation of litigation and retention of counsel. Id.

(126) Id.

(127) United States v. Kovel, 296 F.2d 918, 922 (2d Cir. 1961).

(128) Price, supra note 37, [section] 6.03[3][g][i], at 6-18.

(129) Id.

(130) See United States v. Chevron, U.S.A., Inc., No. CIV.A. 88-6681, 1989 WL 121616, at *6 (E.D. Pa. 1989) (holding that the purpose of an investigative audit team lead by in-house counsel was not to aid in legal advice).

(131) Erickson & Mathews, supra note 32, at 522.

(132) Price, supra note 37, [section] 6.03[g][i], at 6-18.

(133) Id.

(134) See id. [section] 6.03[3][h], at 6-17 (stating that "[w]aiver usually occurs through the disclosure... of the privileged communication to a third party outside the privileged relationship").

(135) See Permian Corp. v. United States, 665 F.2d 1214, 1219-20 (D.C. Cir. 1981) (holding that by disclosing communications to one party, the client waives the privilege for all parties).

(136) Martin, supra note 3, at 728.

(137) 329 U.S. 495 (1947).

(138) Id. at 510.

(139) Hellerstein, supra note 34, at 612; Wasser & Jacoby, supra note 12, [section] 5.04, at 5-34. "Litigation" includes trial, administrative proceedings, and grand jury investigations. Id.

(140) Wasser & Jacoby, supra note 12, [section] 5.04, at 5-33.

(141) Id.

(142) FED. R. CIV. P. 26(b)(3).

(143) Id.

(144) Id.

(145) Briggs & Stratton Corp. v. Concrete Sales & Serv., 174 F.R.D. 506, 510 (M.D. Ga. 1997).

(146) Diversified Indus., Inc. v. Meredith, 572 F.2d 596, 604 (8th Cir. 1978).

(147) Kent Corp. v. NLRB, 530 F.2d 612, 623 (5th Cir. 1976).

(148) Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431,434 (W.D.N.Y. 1997) (quoting James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 143 (D. Del. 1982)).

(149) FED. R. CIv. P. 26(b)(3).

(150) See State v. Ybarra, 777 P.2d 686, 690 (Ariz. 1989) (holding that work of counsel's experts are protected just as if the attorney performed the work).

(151) See, e.g., id. at 690 (holding that the privilege applied to the expert's report because the expert prepared the report with the instruction of counsel); APL Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 17 (D. Md. 1980) (stating that the instruction of counsel is relevant, but not conclusively determinative, of whether a report is created in anticipation of litigation).

(152) Ybarra, 777 P.2d at 690.

(153) Id.

(154) GELTMAN, supra note 86, [section] 4.3, at 198-203; see also Martin v. Bally's Place Hotel & Casino, 983 F.2d 1252, 1261 (3rd Cir. 1993) (holding that client's anticipation of litigation was reasonable when OSHA alleged violations); Bituminous Cas. Corp. v. Tonka Corp., 140 F.R.D. 381 (D. Minn. 1992) (protecting documents produced in response to pollution control agency directives).

(155) Bally's Place Hotel & Casino, 983 F.2d at 1261.

(156) Id.

(157) 174 F.R.D. 506 (M.D. Ga. 1997).

(158) Id. at 509.

(159) Id.

(160) See Hellerstein, supra note 34, at 612; Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431, 435 (W.D.N.Y. 1997) (holding counsel failed to prove that expert's project was for the purposes of litigation when report was disseminated to other engineers and non-attorneys); Metro Wastewater Reclamation Dist. v. Cont'l Cas. Co., 142 F.R.D. 471, 477 (D. Colo. 1992) (holding that documents were not prepared in anticipation of litigation when they were created before the statute).

(161) Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992).

(162) Occidental Chem., 175 F.R.D. at 434-36.

(163) Id. at 435.

(164) Id at 435-36.

(165) Id.

(166) Erickson & Mathews, supra note 32, at 523.

(167) Price, supra note 37, [section] 6.03[5], at 6-22.

(168) Id.

(169) In re Sealed Case, 676 F.2d 793, 809 (D.C. Cir. 1982).

(170) Id. at 809 n.56.

(171) Id. at 822.

(172) Id. The court implied waiver of work product when a corporation disclosed its investigative reports and notes to SEC under a voluntary disclosure program, thus binding itself to provide access to any records necessary to analyze the reports and notes. The court instructed that the corporation could protect its privileges by identifying non-disclosed privileged material, but it bears the risk that this will not be accepted as full disclosures. Id.

(173) Id.

(174) In re Doe, 662 F.2d 1073, 1081 (4th Cir. 1981).

(175) Id.

(176) Erickson & Mathews, supra note 32, at 522-23; Martin, supra note 3, at 728.

(177) FED. R. CIV. P. 26(b)(4)(A), (B).

(178) Id. 26(b)(4)(B); see, e.g., Arco Pipeline Co. v. S/S Trade Star, 81 F.R.D. 416, 417 (E.D. Pa. 1978) (holding that certain answers to interrogatories cured any "exceptional circumstances"; Pearl Brewing Co. v. Jos. Schlitz Brewing Co., 415 F. Supp. 1122, 1140 (D. Tex. 1976) (holding that "exceptional circumstances" did not exist when defendant could receive similar information from plaintiffs testifying witnesses).

(179) Blomquist, supra note 11, [section] 4.04, at 4-41.

(180) Mark D. Coldiron & Connie M. Bryan, Use of Experts in Environmental Litigation and Enforcement Matters, 11 NAT. RESOURCES & ENV'T 13, 15 (1996).

(181) Id.

(182) Wasser & Jacoby, supra note 12, [sections] 5.04[2][b], at 5-36 to 5-37.

(183) Erickson & Mathews, supra note 32, at 523.

(184) State v. Ybarra, 777 P.2d 686, 690 (Ariz. 1989) (observing that attorneys must rely on experts, investigators, and other agents); Wasser & Jacoby, supra note 12, [section] 5.04, at 5-36 to 5-37.

(185) Erickson & Mathews, supra note 32, at 523.

(186) Id.

(187) See Nat'l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 984 (4th Cir. 1992) (stating that, even when a claim is investigated and litigation ensues, investigation reports may not be conducted in anticipation of litigation); Occidental Chem. Corp. v. OHM Remediation Servs. Corp., 175 F.R.D. 431,435 (W.D.N.Y. 1997) (holding that documents prepared to submit to federal authorities were not prepared in anticipation of litigation).

(188) Coldiron & Bryan, supra note 180, at 15.

(189) Wasser & Jacoby, supra note 12, [section] 5.01[1][a][iii], at 5-14.

(190) Martin, supra note 3, at 773.

(191) Id. at 733 n.220 (listing the states that have codified the self-critical analysis privilege and the corresponding statutory citations).

(192) Bredice v. Doctors Hosp., 50 F.R.D. 249, 251 (D.D.C. 1970), aff'd, 479 F.2d 920 (D.C. Cir. 1973) (mem.).

(193) Reichhold Chem., Inc. v. Textron, Inc., 157 F.R.D. 522, 526-27 (N.D. Fla. 1994).

(194) Id. at 527.

(195) Id.

(196) Id.

(197) Id.

(198) See id. (adopting a requirement that the evaluation be post-accident); Arkwright Mut. Ins. Co. v. Nat'l Union Fire Ins. Co., No. 90 CIV. 7811 (KC), 1993 WL 14448, at *4 (S.D.N.Y. 1993) (holding that the party could not invoke the self-critical privilege because it redacted the "purpose and scope" section of the reports); State v. CECOS Int'l, Inc., 583 N.E.2d 1118, 1121 (Ohio Ct. App. 1990) (holding that the self-critical privilege does not apply to the defendant because of the numerous reporting laws for the hazardous waste industry); United States v. Dexter Corp., 132 F.R.D. 8, 10 (D. Conn. 1990) (holding that application of the self-critical privilege would hinder enforcement of the Federal Water Pollution Control Act); Artesian Water Co. v. New Castle County, No. C.A.5106, 1981 WI, 15606, at *4 (Del. Ch. 1981) (holding that the need for the data outweighs any claim of privilege).

(199) See Martin, supra note 3, at 732 & n.216 (observing that internal audits are intended to self-police).

(200) GELTMAN, supra note 86, [section] 4.4, at 203-04.

(201) Id. at 208.

(202) 132 F.R.D. 8 (D. Conn. 1990).

(203) Id. at 10; Federal Water Pollution Control Act, 33 U.S.C. [subsection] 1251-1387 (1994 & Supp. III 1997). 204 33 U.S.C. [section] 1321(b)(1).

(205) Dexter Corp., 132 F.R.D. at 9-10.

(206) 157 F.R.D. 522 (N.D. Fla. 1994)

(207) Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. [subsection] 9601-9675 (1994 & Supp. III 1997).

(208) Reichhold Chem., 157 F.R.D. at 527.

(209) Id. at 524.

(210) Id.

(211) Id.

(212) Id.

(213) See RIESEL, supra note 56, [section] 3.0413], at 3-30 (noting that courts draw clear lines on privilege issues).

REBECCA FIECHTL, Associate, Alston and Bird L.L.P., Charlotte, NC; J.D. 2001, University of Memphis.