Argued: January 8, 2015.
Civil action commenced in the Superior Court Department on October 24, 2008.
A motion to strike privilege and work product objections to certain documents and to compel their production, filed on May 15, 2014, was heard by Richard T. Moses, J.
An application for leave to prosecute an interlocutory appeal was allowed by Judd J. Carhart, J., in the Appeals Court, and the case was reported by him to that court. The Supreme Judicial Court granted an application for direct appellate review.
Shephard S. Johnson, Jr., for city of New Bedford.
Mary K. Ryan ( Cynthia M. Guizzetti with her) for AVX Corporation.
John J. Gushue, for ABC Disposal Service, Inc., was present but did not argue.
Mark P. Dolan & Stanley F. Pupecki, for Tutor Perini Corporation, submitted a brief.
Michael R. Perry & Aaron D. Rosenberg, for NSTAR Electric Company & another, submitted a brief.
John J. Davis & John M. Wilusz, for Massachusetts Municipal Association, amicus curiae, submitted a brief.
Martha Coakley, Attorney General, & Judy Zeprun Kalman, for the Commonwealth, amicus curiae, submitted a brief.
Brandon H. Moss, for Massachusetts Municipal Lawyers Association, Inc., amicus curiae, joined in a brief.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.
[30 N.E.3d 793] Gants, C.J.
In General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801, 711 N.E.2d 589 (1999) ( General Electric ), we held that " materials privileged as work product ... are not protected from disclosure under the public records statute unless those materials fall within the scope of an express statutory exemption." We noted that there is not an express statutory exemption for work product and rejected the claim that work product is protected from disclosure by an implied exemption. See id. at 801-806. In General Electric, the parties were not yet in litigation, so the work product was sought under the public records act rather than in discovery. And in General Electric we did not reach the issue whether the work product would be
protected from disclosure under the " policy deliberation" exemption, G. L. c. 4, § 7, Twenty-sixth ( d ), known as exemption ( d ). Here, the parties are in litigation, and the work product in the possession of the city of New Bedford (city) was sought in discovery. We now revisit our holding in General Electric and explore the scope of the " policy deliberation" exemption in the context of work product sought in discovery from a municipality during litigation. We conclude that " opinion" work product that, as codified in Mass. R. Civ. P. 26 (b) (3), 365 Mass. 772 (1974), was " prepared in anticipation of litigation or for trial by or for [a] party or ... that ... party's representative" falls within the scope of exemption ( d ) and therefore falls outside the definition of " public records" under G. L. c. 4, § 7, Twenty-sixth. [30 N.E.3d 794] We also conclude that " fact" work product under Mass. R. Civ. P. 26 (b) (3) that was prepared in anticipation of litigation or trial falls within the scope of exemption ( d ), and therefore falls outside the definition of " public records," where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Where work product is exempted from disclosure under the public records act, it is protected from disclosure in discovery to the extent provided by Mass. R. Civ. P. 26.
The case underlying this appeal concerns liability for the costs of environmental cleanup of widespread soil contamination at and around a site that the city allegedly operated until the 1970s as an unrestricted ash dump for industrial and other waste (site). In October, 2008, property owners from a neighborhood around the site filed a civil action in the Superior Court against the city bringing common-law claims and a claim under G. L. c. 21E seeking damages arising from the soil contamination. In December, 2009, the city filed a third-party com-
plaint alleging common-law claims and cost recovery claims under G. L. c. 21E against various third-party defendants. After the original complaint was filed and before the city filed its third-party complaint, the city solicitor, on behalf of the city, retained Andrew Smyth, a consultant at TRC Environmental Corporation (TRC), to evaluate the issues related to the claims in the civil action and to identify sources of the contamination that may be legally responsible to pay for the cleanup. Smyth provided his services directly to the city solicitor in connection with the litigation pending against the city.
During the course of discovery, various third-party defendants moved to strike the city's privilege and work product objections to TRC documents and to compel their production. The third-party defendants asked, as part of the relief requested, that the city be compelled to produce [30 N.E.3d 795] documents that Smyth had prepared for the city, including two letters to the city solicitor and a fifty-two-page " evaluation report," described as a draft, regarding the sources and occurrence of soil contamination in the relevant area of the city (collectively, TRC work product). The city responded that the TRC work product was protected from discovery by the attorney-client privilege and the work product doctrine. The motion judge rejected the city's claim of attorney-client privilege. The judge also rejected the city's contention that the documents were protected from disclosure under the work product doctrine codified in Mass. R. Civ. P. 26 (b) (3), even though he found that the documents contained " information which was intended to assist the city solicitor in advising the [c]ity as to the potential litigation." Citing General Electric, the judge concluded that the TRC work product, having been received by the city solicitor, constituted " public records" as defined in G. L. c. 4, § 7, Twenty-sixth,
and therefore was subject to discovery unless it fit " within an enumerated exception." Because there is no enumerated exception for work product, and because the documents were not protected by the attorney-client privilege, the judge allowed the third-party defendants' motion, and ordered that the work product be produced. The judge noted that " but for the public records law, said materials would clearly constitute attorney work product, and would ...