LOS ANGELES (CN) – Six Flags’ claim that internal documents sought by environmentalists are protected by attorney-client privilege did not pass muster with a magistrate judge Tuesday, in a case alleging pollution of the Santa Clara River.
Attorneys for three environmental groups convened at the Federal Court in downtown L.A. and urged the court to grant their motion to compel Six Flags Magic Mountain to produce documents and employee emails.
Wishtoyo Foundation’s Ventura Coastkeeper program, Santa Monica Baykeeper and Friends of the Santa Clara River sued Six Flags Magic Mountain in 2012, seeking civil penalties and an injunction under the U.S. Water Pollution Control Act.
The groups claimed the amusement park’s owners and operators dumped stormwater containing trash, garbage, fecal matter, oil, e. Coli and other pollutants into the river, once named one of America’s most endangered.
The park’s parent company Six Flags Entertainment of Grand Prairie, Texas was also named, along with the Valencia operator Magic Mountain LLC. The parent corporation is the world’s largest amusement park operator in the world, with 18 parks nationwide.
U.S. District Judge Gary Allen Feess on Dec. 3 partially granted the groups’ motion for summary judgment on their claim that Magic Mountain violated a pollution permit control program under the Clean Air Act.
In a 15-page order, Feess found there was evidence of elevated levels of suspended solids and copper in the park’s stormwater discharges.
But Feess said the groups did not persuade him that the park had dumped water including e. coli, oil and grease, finding that they were “one-off violations that have not recurred since this action was filed.”
At a morning hearing at the Roybal Courthouse, legal fellow Lia Comerford of Earthrise Law Center at the Lewis & Clark Law School in Portland told magistrate Judge Margaret Nagle that Magic Mountain had refused to use certain search terms to comb through emails.
Instead, the amusement park had said that it would only search through emails of five employees on the park’s stormwater team. Comerford said she believed the number of relevant employees could be as high as 25.
Nagle wondered why Magic Mountain would not allow more searches of members of the park’s stormwater team. She told Magic Mountain attorney Hubert T. Lee that she had “no idea” how the corporation could argue that providing the internal emails was burdensome.
“Heck, even I can search email accounts,” Nagle said, looking over her glasses at Lee. “I know how to search my archived email. I know how to search my folders. If I’m really looking for something, I’m pretty darn good at finding it on my email. I don’t suspect that there’s any great burden.”
Lee said that some employees on the plaintiffs’ list were no longer at the company. He suggested that some on the stormwater team were “ground level employees,” who work in construction trailers, perhaps without access to internal emails.
Nagle was not persuaded. She made clear that the court was not asking Magic Mountain to produce records out of thin air and that it would not be too much trouble to find out which employees and emails were relevant.
“My late, beloved British mother was the queen of clichés,” Nagle said. “And the one she would be using right now is, ‘Well, the proof of the pudding is in the eating.’ And by that, I mean, until you do the search you don’t really know if there’s anything there.”
Lee argued that thousands of documents involving a consultant, Kennedy/Jenks Consulting, which was hired to provide advice on how to comply with Clean Water Act permits, were subject to attorney-client privilege.
Comerford noted that the park was asserting privilege over more than 8,000 documents.
“We do contend that you can’t just cc your attorney and assert attorney-client privilege,” Comerford said.
Nagle seemed to agree.
“I don’t see how under any legally appropriate standard, the management of permit compliance of a company by an environmental consultant can be brought within attorney-client or work product privilege,” Nagle said.
The magistrate judge told the attorneys to meet to review a list of which employees are still employed by Magic Mountain, do or do not have email, and establish which internal emails have been purged.
They agreed to meet and provide an update to the judge by the middle of next week.
Judge Feess has retired. The case has been transferred to U.S. District Judge Stephen V. Wilson.
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