DaRosa v. City of New Bedford Monsanto Co.
471 Mass. 446
| Mass. | 2015Background
- Bristol superior case concerns environmental cleanup costs for soil contamination around a site city allegedly operated as an ash dump.
- City of New Bedford retained TRC Environmental Corporation (Smyth) to evaluate contamination-related issues for pending litigation.
- TRC materials (two letters and a 52-page evaluation report) were produced to the city solicitor in anticipation of litigation.
- Third-party defendants sought production of the TRC materials; city claimed attorney-client privilege and work product protection.
- A discovery order held that TRC work product was a public record under G. L. c. 66 and not protected unless exempt; city sought interlocutory relief.
- Court grants direct appellate review to reexamine whether work product can be exempt under the public records act (exemption (d)) and related principles.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TRC work product is exempt from public records disclosure under exemption (d). | Third-party defendants contend TRC material is public records. | City argues exemption (d) protects policy deliberations and related work product. | Exemption (d) applies to opinion and certain fact work product in anticipation of litigation. |
| Scope of policy deliberation exemption (d) for litigation-related materials. | Third-party defendants urge broad public record disclosure absent exemption. | City asserts deliberative process protection extends to litigation strategy documents. | Policy deliberation exemption protects litigation-related materials, including opinion work product. |
| Whether derivative attorney-client privilege shields TRC materials. | Third-party defendants rely on derivative privilege to shield Smyth's work. | City argues derivative privilege protects translator-assisted communications. | Derivative privilege does not shield the TRC materials; it rests on work product analysis. |
| Whether fact work product falls within exemption (d) or must be disclosed under Rule 26(b)(3). | Public records could compel disclosure; fact work product may be shielded if interwoven with opinions. | Some fact work product not reasonably completed or interwoven remains protected; others not. | Fact work product may be disclosed unless within exemption (d) or other exemptions; court must decide on remand. |
Key Cases Cited
- General Elec. Co. v. Dep't of Envtl. Protection, 429 Mass. 798 (1999) (work product not protected from disclosure unless express exemption applies)
- Suffolk Constr. Co. v. Division of Capital Asset Mgmt., 449 Mass. 444 (2007) (attorney-client privilege impliedly exempt from public records definition)
- Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209 (2011) (protective orders may create implied exemptions from public records act)
- Mink, 410 U.S. 73 (1973) (deliberative process privilege context for exemptions)
- National Labor Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (work product doctrine integrated with FOIA exemptions)
- Klamath, 532 U.S. 1 (2001) (deliberative privilege related to agency litigation)