[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
Attorney-expert communications and documents were discoverable under the principle of subject matter waiver of work product and privileged information in Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025).
FACTS
An advocacy group and 94 individuals brought this environmental action against a landfill operator and city. Before suit was filed in 2018, plaintiffs hired a consulting expert, Mary E. Holvey, to conduct air sampling. The court wrote that: “Plaintiffs’ counsel and Ms. Holvey exchanged written communications, mostly via electronic mail, during the time Ms. Holvey conducted testing and thereafter.”
Ms. Holvey prepared a report in 2025 and plaintiffs cited it in their amended Complaint. They also quoted it in answers to interrogatories and attached it to a permit modification application filed with a government agency.
Plaintiffs produced the report first with redactions, but they later removed the redactions. “Finally, during discovery in this matter, Plaintiffs produced an email sent to an attorney at the [government agency] that inadvertently included communications between Ms. Holvey and one of Plaintiffs’ counsel.”
During the same time period that Ms. Holvey performed testing for plaintiffs, she performed other testing.
Defendants asserted that Ms. Holvey was a fact witness and served a subpoena on her. Plaintiffs asserted privilege, provided a privilege log, and withheld 115 documents.
A sample of 29 email threads was provided to the court for in camera review. The court wrote:
During oral argument, counsel for [defendant] WMNY clarified that his client is only arguing that Plaintiffs waived work product protection because they cited to Ms. Holvey and quoted her in the Second Amended Complaint and interrogatory responses. WMNY is not claiming waiver occurred because Plaintiffs produced Ms. Holvey’s redacted and unredacted report.
Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025).
FED.R.EVID. 502(a)
The court looked to the cherry-picking provisions of Fed.R.Evid. 502(a). Under that rule, if a litigant intentionally discloses privileged information, it cannot do so selectively and unfairly. It must disclose any information on the same subject matter that “in fairness” should “be considered together.”
The court quoted at length the November 28, 2007, Advisory Committee Notes to Fed.R.Evid. 502(a). In part, they state that “a subject matter waiver (of either privilege or work product) is reserved for those unusual situations in which fairness requires a further disclosure of related, protected information, in order to prevent a selective and misleading presentation of evidence to the disadvantage of the adversary.”
The Note continues: “Thus, subject matter waiver is limited to situations in which a party intentionally puts protected information into the litigation in a selective, misleading and unfair manner.”
THE PARTIES’ CONTENTIONS
Defendants contended that plaintiffs’ quotation and affirmative reliance on Ms. Holvey’s testing was an effort to use privilege as both “a shield and a sword….” They asserted “that Plaintiffs have opened the door to producing Ms. Holvey’s opinions about the test results because Plaintiffs included Ms. Holvey’s opinion in the operative complaint.”1 They claimed the information would show where and when testing was conducted.
Plaintiffs disagreed, raising several arguments. They asserted that the quoted portions were merely factual and sampling data that anyone with equipment could have obtained. They maintained that all the information about when and how testing was done was contained in the report. They asserted that communications with an expert are privileged and work product and that there was no effort to unfairly gain an advantage.
At oral argument, Plaintiffs asserted that if there is subject matter waiver it should not apply to communications between Plaintiffs’ counsel and Ms. Holvey regarding strategy because there are a series of emails contained on the privilege log that involve strategy, and they constitute attorney work product.
Id.
Finally, they argued that fairness considerations should limit the scope of any waiver.
THE COURT’S ANALYSIS & HOLDING
The Fresh Air court found it undisputed that the waiver was intentional. That met the criteria of Fed.R.Evid. 502(a)(1).
Further the disclosed and undisclosed information related to the same subject matter, because it all related to Ms. Holvey’s January 2018 sampling, testing, and analysis. That disposed of Fed.R.Evid. 502(a)(2).
The court wrote: “Thus, based upon Plaintiffs’ express waiver, they must produce all communications and documents related to Ms. Holvey’s January 2018 sampling and testing and subsequent analysis of the same.”
Thus, based upon Plaintiffs’ express waiver, they must produce all communications and documents related to Ms. Holvey’s January 2018 sampling and testing and subsequent analysis of the same.
Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025).
That left subsection (3), which is whether “they ought in fairness to be considered together.” In the court’s words: “The question remains, however, as to whether Plaintiffs may limit their waiver to their chosen scope—any waiver should exclude communications or documents that involve attorney work product and discussions of strategy—or whether fairness requires disclosure of the related materials.”
The court stated:
Having conducted an in camera review of several of the disputed documents, I find that considerations of fairness require that [defendant] WMNY have access to them so that it is able to have a contextual understanding of the information disclosed by Plaintiffs in the Second Amended Complaint and interrogatory responses. Without access to the information WMNY would be at a disadvantage in defending themselves in this litigation due to Plaintiffs’ actions, which would be unfair.
Id.
Based on its in camera review, the court explained:
Plaintiffs contend that the information contained in the Second Amended Complaint is factual and that anyone with the requisite equipment could have obtained the same information. However, this is not true. It is clear from my in camera review and a review of the subject matter column in Plaintiffs’ privilege log that the timing of the testing was of paramount importance. The pungency of the odors allegedly emanating from the Landfill depended on a variety of factors including time of day and the direction of the wind. WMNY could not have known what dates and times Ms. Holvey was going to conduct her sampling. WMNY cannot recreate that sampling now. What it can do is try to understand the data that Plaintiffs have affirmatively used as proof of their case against WMNY.
Id.
The court also pointed to an email that was inadvertently produced which showed that the expert discussed equipment that tested for a half hour while her report referred to a one-hour standard.
The court wrote: “While I cannot determine the importance of this information, from what I have been provided and knowing the facts of this case as they stand now, this appears to be very relevant information that should, in fairness, be disclosed.”
In addition to setting parameters for the expert’s deposition, the court held: “Based on the forgoing, I direct Plaintiffs to review their entire privilege log related to Ms. Holvey and to produce all communications and documents relating to when, where, and how she conducted the January 2018 sampling and testing and related analysis of the same. This includes communications between Plaintiffs’ counsel and Ms. Holvey if they relate to the same subject matter.” [Emphasis added].
The court also discussed what I will call gaming the system: “As an example of the [plaintiffs’] selective production of information, during oral argument [defendant] WMNY asserted that a comparison of the redacted and unredacted versions of Ms. Holvey’s report reveal that Plaintiffs redacted information that was not helpful to them.” [Emphasis added]. Perhaps that fact plus the half hour v. one hour email that was inadvertently produced added weight to the fairness analysis.
As an example of the [plaintiffs’] selective production of information, during oral argument [defendant] WMNY asserted that a comparison of the redacted and unredacted versions of Ms. Holvey’s report reveal that Plaintiffs redacted information that was not helpful to them.” [Emphasis added]
Fresh Air for the Eastside, Inc. v. Waste Mgt. of N.Y., LLC, 2025 WL 2107878 (W.D.N.Y. Jul. 28, 2025).
Fed.R.Civ.P. 26(b)(4)(C)
The Fresh Air court did not cite to Fed.R.Civ.P. 26(b)(4)(C). It states:
Trial-Preparation Protection for Communications Between a Party’s Attorney and Expert Witnesses. Rules 26(b)(3)(A) and (B) protect communications between the party’s attorney and any witness required to provide a report under Rule 26(a)(2)(B), regardless of the form of the communications, except to the extent that the communications: (i) relate to compensation for the expert’s study or testimony; (ii) identify facts or data that the party’s attorney provided and that the expert considered in forming the opinions to be expressed; or (iii) identify assumptions that the party’s attorney provided and that the expert relied on in forming the opinions to be expressed.
Fed.R.Civ.P. 26(b)(4)(C).
Rule 26(a)(2)(B) defines what is required in an expert’s report. Rule 26(B)(A) and (B) states:
(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); and
(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.
(B) Protection Against Disclosure. If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.
Fed.R.Civ.P. 26(B)(A) and (B).
It appears to me that, based on the court’s analysis, the defendants in Fresh Air could show substantial need for 2018 testing that was disclosed in a 2025 report. However, any discovery would be limited to protect against disclosure of attorney mental impressions.
Notes
- In my view, if that argument sufficed, it would undercut Rule 502(a). It, alone, did not suffice. ↩︎
Assisted by GAI and LLM Technologies per EDRM GAI and LLM Policy.
