MONTPELIER, Vt. (Legal Newsline) - A group that opposes climate-change litigation doesn’t deserve to recover any of its legal fees in a case where it convinced a trial judge to order the Vermont Attorney General’s office to turn over some documents detailing its agreements with other AGs, the state’s highest court ruled.
Environmental Policy Advocates sued AGs in Vermont and several other states seeking common-interest agreements in which the AGs discuss a unified strategy for suing oil and gas companies over climate change. EPA argues those documents aren’t covered by the work-product or attorney-client privilege since the AGs are sharing information with outside parties involving essentially political matters.
A trial court partly agreed, ordering Vermont to turn over seven common-interest agreements for in camera review by the judge. The court rejected EPA’s other requests but awarded the group $12,381.92 in fees for its victory on the common-interest agreements.
Both sides appealed and the Vermont Supreme Court reversed the fee award while upholding the trial court’s refusal to order the AG’s office to turn over more documents to EPA. The decision mirrored a similar decision by the Minnesota Supreme Court last year rejecting EPA’s attempt to obtain climate-strategy documents there.
Vermont Rule of Civil Procedure 26(b)(4) protects from discovery documents and tangible things “prepared in anticipation of litigation or for trial.” “Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party” are absolutely protected.
EPA argued the work-product doctrine didn’t apply because there was no litigation pending and the AG’s office had waived it anyway by sharing documents with other state AGs. The group cited dicta, or writing outside the formal holding, in a prior Vermont Supreme Court decision stating litigation must be “in esse,” or exist, for the work-product claim to be have force. That reading is incorrect, the Supreme Court ruled, however, since the decision also mentions “prospective” litigation.
EPA also conflated the work-product doctrine with the attorney-client privilege when it argued the Vermont AG had lost protection over documents shared with other states. The attorney-client privilege is easier to waive, the court said, while work-product protection is only waived when information is shared with another party in an insecure way.
“Here, the documents and communications at issue were shared by the AGO with the AGOs of other states in an effort to unify its strategy and conserve resources with regard to environmental litigation that the AGO has considered pursuing or predicted defending against,” the high court said. Further, in contrast to plaintiff’s characterization, these documents and communications were disclosed in a way calculated to preserve confidentiality, not in a way that materially increased the likelihood of an adversary obtaining them.”
The court also rejected EPA’s request for fees, saying the group didn’t “substantially prevail.” It won two of the four cases it originally filed but all four were consolidated and the end result was less impressive, the court concluded.