UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.

*1 Dear Counsel,

In this action for injunctive relief against a solid waste landfill, the Defendants, Warren L. Thrasher and several business entities in which he owns an interest (“Thrasher”), move to quash thirteen subpoenas duces tecum served on thirteen third party entities with whom Thrasher does business. Thrasher further moves to overrule an objection made by the Plaintiff, the City of Chesapeake (the “City”), during a deposition of one of the City's employees. The Court has reviewed the written filings and considered the arguments of counsel presented at the hearing on June 9, 2021.

Motion to Quash

The landfill at issue in this case has been operating since the 1960's and it is undisputed that Thrasher continues operating the landfill through the present day. The City alleges that the landfill is not currently permitted and that its current operations are illegal. All of the subpoenas duces tecum in question contain the following description of the documents sought:

Thrasher objects on the basis that the discovery is “unreasonable, oppressive, unduly burdensome and expense for Defendants’ customers who are strangers to this litigation,” that the subpoenas “do not contain any temporal restriction related to activities that have been ongoing for over four decades,” and that the subpoenas are harassing and injurious to Thrasher's business, particularly because their issuance by a government entity is intimidating to the customers.

The City argues first that Thrasher lacks standing to assert undue burden and expense on behalf of its customers. Rule 4:9A of the Rules of the Supreme Court of Virginia provides as follows:

*2 Id. Clearly the Rule confers standing on the party against whom production is sought, and on the basis of undue burden or expense.

Thrasher argues that compliance with the subpoenas duces tecum would be unduly burdensome and expensive in light of the fact that their continued operation of the landfill is not disputed, and the only issue is whether they are in fact operating illegally. The City argues in rebuttal that abandonment of operations during any period of one year or more, on either of the two separate parts of the landfill, would render the permits invalid for that part of the landfill.

The Court does not find the City's abandonment argument relevant to the issues raised in its Petition for Injunctive Relief. The Petition contains no express claim of abandonment. Instead, the City states in paragraph 29 that “[a]fter July of 2003 there were no City permits issued which would allow landfill operations on the Property,” and in paragraph 30 that “[a]fter November of 2009, there were no City permits issued which would allow borrow pit operations on the Property to extend past the Fall of 2014.” At the hearing, counsel for the City stated that “after 2003” was the “most relevant time period,” and that he was “not sure what records these companies might have that predate that, but obviously, if there is a period of time in the 1990s or the 1980s where there was a year where activity ceased, then I think the City should be able to prove that to prove that the permits are no longer valid.” Any evidence to suggest that the landfill was operating illegally prior to 2003 would be a variance from the pleadings. At this time, it does not appear that the City has any basis to allege in good faith that there was abandonment prior to that time. For that reason, the temporal scope of the subpoenas duces tecum renders them overly broad and not reasonably calculated to lead to the discovery of admissible evidence.

In addition, the subpoenas duces tecum are unduly burdensome considering the issues raised in the Petition. The most relevant factual allegations that to support the City's abandonment argument appear in paragraph 24, in which the City alleges that in 2005, Thrasher filed a “Declaration of Property Conditions,” acknowledging that it had ceased accepting waste on or about July 10, 2003,” and in paragraphs 26 and 28, in which the City alleges that Thrasher submitted a revised restoration plan extending the final restoration date for the borrow pit to Fall of 2014, and that soil stabilization was the only issue remaining as of July of 2016 when the City approved the final restoration plan indicating that borrow pit operations were complete. Even assuming the City intended to prove abandonment of the landfill at some point after July 2003 or abandonment of the borrow pit at some point after Fall of 2014, the subpoenas duces tecum are not reasonably calculated to discover such proof. There is no indication that these were Thrasher's only customers or that the absence of records from these thirteen customers for any one-year period of time would prove that such records never existed, and had not simply been purged or destroyed or were no longer in the customers’ possession. The City is attempting to prove a negative based on wholly incomplete and inconclusive information.

*3 The Court does not accept Thrasher's argument that issuance by a government entity is somehow more intimidating or harassing than any other litigant. These customers are at liberty to consult with an attorney regarding the nature of the subpoenas duces tecum and whether the City has any more coercive power than other litigants. However, the Court may limit discovery on the basis that it is “unduly burdensome or expensive, taking into account the needs of the case, the amount in controversy, limitations on the parties’ resources, and the importance of the issues at stake in the litigation.” Rule 4:1 (b)(1)(iii). In light of the lack of any specific good faith allegation of abandonment, it does not appear to be an issue of great importance in this litigation, or one that is readily proven by a lack of records, and therefore the burden and expense on these thirteen customers would be undue.

Deposition Objection

The City asserts that an e-mail dated August 18, 2020, admitted at the deposition of Karen Harrell as “Exhibit 2” was protected by attorney-client privilege. The e-mail is from Ryan Lipp to Somer Dimaya, and copied to Karen Harrell, the deponent. It describes and attaches maps, which were not part of the exhibit, showing where city drivers dumped materials at the site in question. In her response, Ms. Dimaya states that she will forward the e-mail to the City attorney.

The city argues that Exhibit 2 was sent in response to an e-mail of the same date from the deponent to Ryan Lippe asking for those very maps (“Exhibit 21”), and that her request for the maps was prompted by the city attorney for litigation purposes. Exhibit 21 was produced in response to a FOIA request on February 5, 2021 and admitted at a hearing before this Court on March 26, 2021. During that hearing, the City objected to its admission on the basis of relevance, because it argued that estoppel was not a valid defense. There was no privilege objection to Exhibit 21 at that time and the parties agreed to brief the estoppel issue and address the objection again at the next hearing. Exhibit 21 was produced again in response to an additional FOIA request on April 30, 2021, at which time Exhibit 2 was also produced. On May 3, 2021, Defendants submitted an additional FOIA requests specifically seeking the maps referenced in Exhibit 2.

At a hearing on May 10, 2021, the City addressed its argument regarding Exhibit 21, and this time raised the work product objection, stating that counsel did not know how it was turned over. Defendants argued that it was offered for impeachment, and the Court overruled the objection and admitted Exhibit 21. There is no express ruling by the Court as to whether the document was privileged.

The City now objects to Exhibit 2, and argues that the City produced it inadvertently as part of the FOIA response. Its objection comes 23 days after the last hearing, and over 2 months after the first hearing at which Exhibit 21 had been introduced. Assuming that the request for maps was in fact prompted by the City Attorney for litigation purposes, the Court must determine whether any privilege was waived by producing Exhibit 21 in response to a FOIA request.

The Supreme Court of Virginia has adopted the following factors to determine if an inadvertent disclosure constitutes a waiver of attorney-client privilege:

Walton v. Mid-Atlantic Spine Specialists, P.C., 280 Va. 113, 127, 694 S.E.2d 545, 552 (2010) (citations omitted). Counsel detailed the procedure by which the City responded to FOIA requests. Exhibit 21 was produced in response to two separate FOIA requests, and Exhibit 2 was produced in the second of those responses. Each response was tracked in an electronic databased and reviewed by the City Attorney's office and several documents were withheld based on attorney - client privilege. By the time of the second FOIA response on April 30, 2021, in which Exhibit 21 was produced a second time along with Exhibit 2, the precautions taken by the reviewing attorney were no longer reasonable. Both e-mails were clearly dated after the start of litigation, one had already been objected to in that litigation a month prior on relevance grounds, and would be objected to again on privilege grounds only 10 days later, and Exhibit 2 is an e-mail in the same thread which states on its face “I will forward to the City Attorney.”

*4 Moreover, the Court does not find that the City made timely efforts to rectify the error. On March 26, 2021, when Exhibit 21 was first introduced, it was incumbent on the City to recognize that Exhibit 21 was created for the purposes of this litigation, and had been inadvertently produced. Had it done so, the City would have been alerted to the possibility that other e-mails in the same thread were also privileged. The City presented no evidence that at any time after March 26, 2021 it had reviewed the February 5, 2021 FOIA response to determine whether other e-mails in this thread were included therein, and then it included the same e-mail and the response thereto in the April 30, 2021 FOIA response. It also took no steps after March 26, 2021 to inform Thrasher that Exhibit 21 was inadvertently produced or request the destruction of any further copies, instead waiting until May 10, 2021 to raise the privilege objection. The City failed to identify the inadvertent production of Exhibit 2 until the deposition on June 2, 2021, despite having received an additional FOIA request for its attachments on May 3, 2021, which it withheld as privileged.

The volume of documents does not appear to have prevented counsel from reviewing each document. While counsel for the City contends that it has received over 100 FOIA requests from Thrasher and produced over 1,000 pages, the particular response in which Exhibit 2 was produced was only 77 documents, 6 of which were withheld. The extent of disclosure was complete, having produced Exhibit 21 twice, and having produced Exhibit 2 and having received a follow-up request for the attached maps a few days later. The interests of justice in this case do not favor either party, as there is no indication that the City is attempting to mislead the Court with regard to its use of the landfill. Cf. Walton, 280 Va. at 130-31,694 S.E.2d at 554. Having weighed each of the factors, the Court finds that the City waived any privilege attached to Exhibit 21 and Exhibit 2.

For the foregoing reasons, the Motion to Quash is granted and the Deposition Objection is overruled. Mr. Plumlee, please prepare an order setting forth these rulings and submit the fully endorsed order to the Court for entry.

Sincerely,