                         Environmental Court of Vermont
                                State of Vermont
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                   E N T R Y R E G A R D I N G M O T I O N
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Champlain Marina Dock Expansion                  Docket No. 28-2-09 Vtec
Project: Expansion of water-borne docks, to accommodate larger boats
Applicant:   Champlain Marina, Inc.
         (Appeal from DEC determination on lake waters encroachment
Title: Motion to Compel Documents Requested 6/2/10 (Filing No. 17)
Filed:        June 9, 2010
Filed By: Cielo Marie Mendoza, Attorney for Agency of Natural Resources
Response in Opposition filed on 06/11/10 by Appellants “Save the Bay”
Response in Support filed on June 15, 2010 by Cross-Appellant CMI
Reply filed on June 15, 2010 by ANR
Sur-reply in Opposition filed on June 15, 2010 by Appellants “Save the Bay”

___ Granted                  _X_ Denied              ___ Other

      By its June 9, 2010 Motion to Compel, the Vermont Agency of Natural
Resources (“ANR”) seeks an order from the Court compelling Appellant Save the
Bay to produce documents requested on June 2, 2010. Specifically, ANR requests
any documents or communications “regarding this case and any and all issues on
appeal” between (1) Save the Bay and amicus curiae Vermont Natural Resources
Council (“VNRC”) and (2) Save the Bay and the Environmental and Natural
Resources Law Clinic (“ENRLC”), which represents VNRC.   ANR also requests all
documents that Save the Bay plans to use, in conjunction with VNRC or ENRLC, as
exhibits in direct or cross examination of any witness. We DENY ANR’s motion
for the following reasons.
      ANR requests information protected by the attorney-client privilege,
which is outside the scope of discoverable material. V.R.C.P. 26(b)(1).     The
attorney-client privilege protects confidential communications made for the
purpose of obtaining or rendering professional legal services.         V.R.A.P.
502(b).   Protected communications include those made between a client (or his
lawyer) and another lawyer (or that lawyer’s representative) who represents
another party in a pending action and concerning a matter of common interest
therein.   Id. at (b)(3).    The “community-of-interest rule” allows attorneys
representing clients with similar interests to share information without having
to disclose it to others, thereby protecting the free flow of information
between parties who have decided to undertake a joint strategy in order to
protect their shared interest.    See generally, In re Teleglobe Communications
Corp., 493 F.3d 345, 363–66 (3d. Cir. 2007); U.S. v. Schwimmer, 892 F.2d 237,
243–44 (2d. Cir. 1989).
      Here, Save the Bay and VNRC have agreed to collaborate in protecting
their shared interest concerning the legal issues of what constitutes the
public good and the public trust in Lake Champlain.         Any communications
involving the rendition of legal advice between Save the Bay, VNRC, ENRLC, and
their respective attorneys, are therefore privileged. Communications directly
between Save the Bay and VNRC are likewise privileged. See Post v. Killington,
    Champlain Marina Dock Expansion, No. 28-2-09 Vtec (EO on partial SJ motion)
                                                                    Page 2 of 2.


262 F.R.D. 393, 399 (D.Vt. 2009) (extending the privilege to communications
between clients despite absence of attorneys).
      The requested materials were also “prepared in anticipation of litigation
or for trial” and therefore constitute attorney work-product, which is only
discoverable upon a showing of “substantial need” for the materials and the
inability to obtain the information through other means without “undue
hardship.” V.R.C.P. 26(b)(3).     ANR has provided no such showing in their
request for any communications related to the issues on appeal in this
litigation.
      In demanding communications between attorneys and clients involved in
this case, which were made in preparation for the trial, ANR requests materials
outside the scope of discovery.     Compelling Save the Bay to produce such
documents would have a chilling effect on the free flow of communication
between attorneys and clients who share a common interest in a pending
litigation, undermining the attorneys’ ability to provide effective legal
representation. Accordingly, ANR’s Motion to Compel is DENIED.




___________________________________________      ___June 16, 2010___
      Thomas S. Durkin, Judge                          Date
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Date copies sent to: ____________               Clerk's Initials _______
Copies sent to:
    Stephen A. Reynes, Attorney for Appellants “Save the Bay”: Thomas and
      Margaret Battey, David R. Wood, Kenneth Brown, Marlene Williamson, Laurel
      Butler, Deborah Rabideau, Wes Weaver, Dennis Reichardt, Linda Jackman,
      Sam Jackman, Renae Hance, John P. Louchheim, John R. Louchheim, Lindsey
      Louchheim, Susan R. Louchheim, Stephen C. DePasquale, Jr., Kathryn J.
      DePasquale, Beverly I. Watson, Gordon A. Watson, Bruce Bouchard, Michelle
      Bouchard, Joseph H. Boyd, Ann Burzynski, Neil Metzner, Frank Shea, and
      Catherine Rush.
    Craig Weatherly, Attorney for Cross Appellant Champlain Marina, Inc.
    Cielo Marie Mendoza, Attorney for the Vermont Agency of Natural Resources
    David K. Mears, Attorney for Petitioner to Intervene, VNRC
    Jon Groveman, Esq., co-counsel for VNRC
    John H. Hasen, Attorney for Vt. Natural Resources Board (FYI purposes only)
