N.J. State Senator Loses Round in Court

(CN) – New Jersey state Sen. Tony Bucco cannot disqualify counsel for an environmental firm that claims he illegally seized a landfill it wanted to remediate, a federal judge ruled.
     Strategic Environmental Partners LLC obtained title to the Fenimore landfill in Roxbury Township in 2010, “with the intent of properly remediating the landfill and developing the property with photovoltaic solar panels,” according to its complaint.
     The landfill “reopened in 2012 in order to close it properly,” according to the Roxbury Environmental Action Coalition. “The 400,000+ cubic yards of new material dumped has caused health problems for thousands of people, contaminated the air, [and] reduced property values.”
     Strategic claims the land was illegally seized without a hearing or a court order.
     It sued Bucco, R-Denville, the state Department of Environmental Protection and two of its officials, Robert Martin and Irene Kropp, in August 2013, claiming they supported legislation that swiped Strategic’s control of the landfill.
     The defendants say they sent the plaintiffs’ counsel a CD with “thousands of pages of Bates-stamped electronic documents” on Sept. 7, 2012, along with a letter stating that about 15 percent of the files had not been reviewed for privilege or responsiveness.
     About a month later, the defendants sent a letter stating they had “inadvertently provided electronic correspondence that [was] determined to be privileged or protected” – i.e. 69 documents – according to Deputy Attorney General Robert Kinney.
     The defendants say they asked the plaintiffs to “promptly return or destroy” the email and try to retrieve any information that may have been disclosed to third parties.
     The plaintiffs moved on May 28 this year to file a third amended complaint, which refers to “an email between two NJDEP employees which mentions statements made by a Deputy Attorney General.”
     In response to a June 6 letter, stating that the email was one of the 69 files at issue, the plaintiffs’ lawyer replied on June 9 that he did not believe it was “protected by any privilege,” and refused to return or destroy it or references to it in the amended complaint.
     U.S. Magistrate Judge James Clark III denied the motion to amend in August, finding that it was both procedurally and substantively defective.
     But the judge last week refused to disqualify the plaintiffs’ counsel, noting that nearly 15 percent of the documents produced had not yet been reviewed for privilege issues.
     “Counsel was justified in assuming that the vast majority of documents were not subject to any privilege claim,” the unpublished ruling states.
     Clark added: “Second, when defendants sent the October 2012 letter to counsel notifying him of the claim, counsel certifies that ‘he has no recollection of receiving or reading it[,]’ there were no follow-up communications between the parties regarding the letter, and counsel did not read the actual email until approximately 18 months later. The court accepts counsel’s representation and therefore finds that counsel’s actions in this regard were not in bad faith. Third, counsel has certified that when he did eventually read the email, there was nothing that alerted him that the document might be privileged. It wasn’t until after plaintiff moved to file a third amended complaint that he was again advised of the claimed privilege.”
     The defendants never replied to the plaintiffs’ lawyer’s June 9 letter, the ruling states.
     “Lastly, and most compelling is the history of litigation in this case, the background of this matter long predates the instant motion and counsel has represented plaintiffs since its inception,” Clark wrote. “The court finds that disqualifying counsel at this juncture would unduly prejudice plaintiffs.”

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