308 A.3d 456
Vt.2023Background
- Energy Policy Advocates requested from the Vermont Attorney General’s Office (AGO) any common‑interest agreements and related communications mentioning carbon dioxide, greenhouse gases, or NAAQS under the Public Records Act (PRA).
- The AGO withheld agreements and communications claiming work‑product and attorney‑client privileges and provided a Vaughn index; the trial court conducted in‑camera review of seven agreements.
- The trial court ordered production of the seven formal common‑interest agreements but withheld the inter‑AGO communications as protected work‑product, without resolving attorney‑client or common‑interest doctrines.
- Plaintiff sought broader in‑camera review and fees; the trial court awarded plaintiff approximately half of the requested fees, finding plaintiff substantially prevailed only as to the seven agreements.
- Plaintiff appealed the withholding and the limited fee award; the AGO cross‑appealed the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether inter‑AGO communications exchanged under common‑interest agreements are protected by the work‑product doctrine | No: there was no "in esse" litigation and thus no work‑product; sharing with other AGOs waived protection | Yes: documents were prepared in anticipation of litigation and are protected even if litigation is not pending; sharing with other AGOs under confidentiality does not waive protection | Court: Work‑product protects the communications; Killington’s dicta requiring ongoing litigation is overruled — protection applies to materials prepared in anticipation of litigation |
| Whether disclosure to other state AGOs waived work‑product protection | Disclosure to third parties waives privilege; sharing negates protection | Disclosure was to fellow chief law‑enforcement officers under confidentiality and did not materially increase risk of adversary access | Court: No waiver — disclosure was done in a manner to preserve confidentiality and common‑interest agreements reinforced protection |
| Whether the trial court erred by not ordering broader in‑camera review and whether AGO met its burden to claim privilege | AGO’s Vaughn index and sharing outside the office required in‑camera review; index insufficient | In‑camera review is discretionary; AGO met its burden by providing the index and agreements and court already reviewed key agreements in camera | Court: No abuse of discretion; trial court permissibly declined broader in‑camera review and found the AGO met its burden |
| Whether plaintiff substantially prevailed for PRA fee shifting | Plaintiff prevailed on parts and is entitled to full fees | Plaintiff did not substantially prevail overall; therefore no fees or only limited fees | Court: Trial court abused discretion by bifurcating claims for fee calculation, but, considering the consolidated action as a whole, plaintiff did not substantially prevail; fee award reversed |
Key Cases Cited
- Killington, Ltd. v. Lash, 153 Vt. 628, 572 A.2d 1368 (Vt. 1990) (recognized Vermont common‑law work‑product protection predating Rule 26)
- In re PCB File No. 92.27, 167 Vt. 379, 708 A.2d 568 (Vt. 1998) (work‑product protects witness interview notes and prelitigation materials)
- Hickman v. Taylor, 329 U.S. 495 (U.S. 1947) (foundation of the work‑product doctrine)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (work‑product and privilege protect materials prepared for anticipated litigation/legal advice)
- FTC v. Grolier, Inc., 462 U.S. 19 (U.S. 1983) (attorney work‑product exempt from mandatory disclosure regardless of litigation status)
- N.Y. Times Co. v. U.S. Dep’t of Justice, 939 F.3d 479 (2d Cir. 2019) (waiver occurs on disclosure to adversary or to non‑adversary that materially increases adversary access)
- Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414 (3d Cir. 1991) (disclosure to third party does not necessarily waive work‑product)
- Wesco, Inc. v. Sorrell, 177 Vt. 287, 865 A.2d 350 (Vt. 2004) (PRA interpreted with a strong policy favoring disclosure; exceptions construed narrowly)
- Fletcher Hill, Inc. v. Crosbie, 178 Vt. 77, 872 A.2d 292 (Vt. 2005) ("substantially prevailed" analysis for PRA fee shifting; no mechanical net‑verdict test)
- Burlington Free Press v. Univ. of Vermont, 172 Vt. 303, 779 A.2d 60 (Vt.) (litigation must have a substantial causal effect on release to support fees)