Water Sample Dispute Surfaces In Farm Lawsuit

BERLIN — Legal sparring continued this week in the ongoing lawsuit between an environmental group and a Berlin poultry farm owner over alleged pollution violations with the plaintiff in the case demanding water sampling data and the defendants in the case refusing to turn them over.

The Waterkeeper Alliance, along with the Assateague Coastkeeper and the Assateague Coastal Trust, filed suit in U.S. District Court last March against Perdue and Hudson Farm, a contract Perdue factory farm operation of around 80,000 birds. The suit was filed when sampling in ditches that run adjacent to the property revealed high levels of harmful bacteria including fecal coliform and E. coli in concentrations that exceed state limits for recreational waters.

The Assateague Coastkeeper and the Assateague Coastal Trust were later dismissed as plaintiffs in the case, leaving the Waterkeeper Alliance to forge ahead with the suit. The Waterkeeper Alliance this week filed a motion to compel the defendants to turn over any sampling data they collected after the suit was filed. The defendants immediately responded the sampling data collected was protected by the doctrine of attorney work product and essentially told the plaintiff to do its own research in preparation for a trial.

According to the motion filed on Monday, Hudson Farm has recent sampling data it refuses to turn over to the plaintiff, while Perdue will not even acknowledge it has any sampling data.

“Defendant Hudson Farm acknowledges that it is in possession of sampling data and related information that it collected from the Hudson Farm and it has refused to produce to the plaintiff in response to requests for production,” the motion to compel reads. “Defendant Perdue refuses to even confirm whether it has taken samples at the farm, however the plaintiff is aware that at least some samples have been taken at the Hudson Farm.”

According to the plaintiff, the defendants should not be allowed to withhold sampling data and related factual information responsive to the plaintiff’s request for production. Attorneys for the Waterkeeper Alliance contend the data it is seeking with the motion is not intended to interfere with the defendants’ discovery in the case in any way.

“The plaintiff is seeking to discover purely factual information and, thus, the attorney work doctrine does not apply,” the motion reads. “Further, even if the work product doctrine applies, the plaintiff meets the substantial need and exceptional circumstances test for the discovery of work product privileged material.”

In requesting the production of environmental sampling data and related information, the plaintiff is not seeking to discover the mental impression, legal theories or legal strategies of the defendants’ counsel, the motion reads.

“Neither is the plaintiff seeking to discover any expert opinions about the meaning of the sampling data and information through these requests for production,” the motion reads. “Rather, the plaintiff is only seeking to discover facts relating to the environmental sampling conducted by the defendants at and around the Hudson farm.”

However, the defendants in the case responded the same day the motion was filed, suggesting the Waterkeeper Alliance has at its disposal the very same data counsel for Hudson Farm and Perdue are using.

“The plaintiff seeks from Hudson Farm test results from water samples taken in January 2010,” the answer reads. “The plaintiff cannot show substantial need for those data, however, because the plaintiff has possession of testing data generated by MDE, which tested the waters at precisely the same locations and at precisely the same times.”

Hudson Farm and Perdue rejected the plaintiff’s notion it was denied access to creeks and streams around the property following the filing of the suit.

“The most significant fact underlying the plaintiff’s present motion, which it fails to disclose, is that the plaintiff has never sought access to Hudson Farm to conduct environmental sampling of its own,” the answer reads. “On the only other occasion when the plaintiff sought access for other purposes, the requested access was given.”

Essentially, attorneys for the defendants are suggesting the plaintiffs have not done their due diligence in the preparation of their case and are attempting to piggyback on the research and preparation done by their own counsel.

“In essence, the plaintiff has done nothing but delay, and now, at the 11th hour, claims to have substantial need for the defendant’s work product,” the answer reads. “This motion is a transparent attempt to poach the defendants’ work product, and to take improper advantage of the defendants’ careful case preparation utilizing consulting experts. Counsel cannot sit back, refuse to seek the opportunity to sample, then cry ‘substantial need’ for the fruit of the diligent efforts of opposing counsel.”

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