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Motions, Pleadings and Filings

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United States District Court, N.D. Illinois.

RHONE-POULENC INC., a New York Corporation, Plaintiff,
v.
INTERNATIONAL INSURANCE COMPANY, an Illinois Corporation, International Surplus

Lines Insurance Company, an Illinois Corporation, Defendant.

No. 94 C 3303.

May 8, 1997.

MEMORANDUM OPINION AND ORDER

 CONLON

 *1 Plaintiff Rhone-Poulenc, Inc. ("Rhone-Poulenc") sues defendants International Insurance Company and International Surplus Lines Insurance Company (collectively "defendants") to recover costs incurred in responding to pollution claims.   Defendants are insurers that issued primary and excess layer Environmental Impairment Liability insurance to Stauffer Chemical Company (Stauffer"), Rhone-Poulenc's corporate predecessor.   Defendants filed three motions for partial summary judgment that address the scope of insurance coverage with respect to costs incurred at various sites.   Defendants also filed a motion requesting a ruling on whether an inadvertently produced document ("the Ford document") is privileged. [FN1]  All four motions were referred to Magistrate Judge Morton Denlow.

FN1. The Ford document is a memorandum dated June 24, 1980 from Gary Ford, a Stauffer attorney, to, among others, J.T. Ronan, another Stauffer attorney.

 On April 1, 1997, the magistrate submitted a report and recommendation  ("Report") denying defendants' three motions for partial summary judgment.  The magistrate also entered an order directing the defendants to return the Ford document because it was protected by the attorney-client privilege and that privilege was not waived.   Pursuant to Fed.R.Civ.P. ("Rule(s)") 72, defendants now object to the magistrate's Report and the discovery order.  Defendants also request that certain issues be certified for appeal pursuant to 28 U.S.C. §  1292(b) in the event this court overrules their objections.

DISCUSSION

 I. APPLICABLE LEGAL STANDARDS

 Defendants' motions for partial summary judgment are dispositive motions.  The magistrate's findings as to these motions are reviewed de novo. Fed.R.Civ.P. 72(b)28 U.S.C. §  636(b)(1).

 A movant is entitled to summary judgment under Rule 56 when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.  Fed.R.Civ.P. 56(c)Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir.1993).   Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial.  Fed.R.Civ.P. 56(e)Becker v. Tenenbaum-Hill Assoc., Inc., 914 F.2d 107, 110 (7th Cir.1990).   The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion.  Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.1992).

 A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir.1993), cert. denied, 510 U.S. 1121, 114 S.Ct. 1075, 127 L.Ed.2d 393 (1994). Nevertheless, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts."  Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).  "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient;  there must be evidence on which the jury could reasonably find for the [nonmoving party]."  Anderson, 477 U.S. at 252.

 II. CHOICE OF LAW

 *2 This court must first address whether the law of Illinois or Connecticut governs interpretation of the relevant insurance policies.   Resolving choice of law issues is not a scientific endeavor.   On the contrary, a court must weigh various factors which may be more or less important depending on nature of the claim presented.   After weighing the appropriate factors, the magistrate found "stronger, more significant connections between the parties and Illinois."  Report at 3. Defendants' rehashing of the various factors in order to convince this court to reject the magistrate's Report and apply Connecticut law is unpersuasive.   Accordingly, this court overrules defendants' objections on this point and adopts the magistrate's finding that Illinois law applies.

 III. DEFENDANTS' OBJECTIONS REGARDING ARMY CREEK LANDFILL

 Defendants moved for partial summary judgment with respect to the Army Creek Landfill on the basis that the relevant insurance policy, Policy Number 560- 000-039 ("Policy No. 039"), does not provide coverage.   According to the language of Policy No. 039, coverage is provided only when a claim has been made against the insured or when "other due notice has been received by the Insured during the policy period."   Rhone-Poulenc alleges Stauffer received "other due notice" during the policy period.   Thus, two issues are presented by this motion for summary judgment:  (1) the meaning of the phrase "other due notice" and (2) whether Stauffer received "other due notice" during the policy period.

 A. Meaning of "Other Due Notice"

 The meaning of the phrase "other due notice" is a question of law.   Employers Ins. of Wausau v. Bodi-Wachs Aviation Ins. Agency, Inc., 846 F.Supp. 677, 684 (N.D.Ill.) ("the interpretation of an insurance policy is a question of law for the court"), aff'd, 39 F.3d 138 (7th Cir.1994).   Policy No. 039, in relevant part, states:

The Company agrees to indemnify the Insured against all sums which the Insured shall be obligated to pay for damages by reason of the liability imposed upon the Insured by law on account of:--

(a) Personal Injury;

(b) Property Damage;

(c) Impairment or diminution of or other interference with any other environmental right or amenity protected by law;

arising within the Territorial Limits designated in the Declarations and caused by Environmental Impairment in connection with the business of the Insured at the location designated in the Declarations and in respect of which a claim has been made against or other due notice has been received by the Insured during the Policy Period.   Policy No. 039 at ¶  I.1 (emphasis added).

  The magistrate found "other due notice ... received by the Insured" means, as used in Policy No. 039, notice received by an insured that it is reasonably likely that a claim may be made against it.   Report at 9. Defendants object and argue "that as part of 'other due notice' [Rhone-Poulenc] must show it received notice during the policy period that an event resulting in third-party personal injury, property damage or impairment of an environmental right relating to Army Creek had taken place."   Defendants' Objections Re Army Creek Motion ("Army Creek") at 6. Thus, the parties agree "other due notice" may substitute for an actual claim and trigger coverage, but dispute the answer to the question:  "Notice of what?"

 *3 Although this extremely long sentence is confusing at first, its meaning becomes clear when it is broken down.   The second half of the sentence is made up of three descriptive phrases:  (1) "arising within ..." (2) "caused by ..." and (3) "in respect of which....  " These phrases--each separated by the word "and"--are parallel requirements that limit coverage.   The issue is which noun or nouns these phrases modify.   Not surprisingly, the series of nouns they modify is that which immediately precedes them in the sentence:  personal injury, property damage and environmental impairment.   Thus, as defendants argue, coverage is triggered either (1) when an actual claim for personal injury, property damage or environment impairment has been made or (2) when other due notice of personal injury, property damage or environment impairment, such that a claim may result, has been received.   Army Creek at 9. This interpretation is consistent with the nature of the policy as "claim-based" not "occurrence-based."   It is also consistent with the sentence structure in which the phrase "in respect of which" grammatically links two alternatives-- "claim" and "other due notice"--to the three types of liability covered.   The magistrate excluded notice of the underlying event giving rise to liability from his definition of "other due notice" because he believed such an interpretation "would render the phrase 'other due notice' superfluous ... [because] knowledge that 'an event resulting in third-party property damage, personal injury or the impairment of a third-party environmental right relating to Army Creek had taken place,' ... would be sufficient to state an actual claim under the policy."   Report at 8. This conclusion, however, improperly equates the conditions necessary to state a claim (which may constitute due notice) with the claim itself, that is, an actual demand for relief.

 The phrase "notice received by an insured of personal injury, property damage or environment impairment, such that a claim may result"--does not conflict with, but is encompassed by, the magistrate's somewhat broader language-- "notice received by an insured that it is reasonably likely that a claim may be made against it."   Accordingly, this court adopts the magistrate's definition, but in a modified, narrower form.   This court finds "other due notice" as used in insuring agreement one of Policy No. 039 means, as a matter of law, "notice received by the Insured that an event resulting in third-party personal injury, property damage, or the impairment of a third-party environmental right has taken place such that it is reasonably likely that a claim may be made against it."

 B. Whether Stauffer Received "Other Due Notice"

 Using his broader definition, the magistrate found whether Stauffer received  "other due notice" is an issue of material fact.   Report at 10-11.   Under the narrower definition of "other due notice" adopted by this court, the documents relied upon by the magistrate still demonstrate whether Stauffer received "other due notice" is an issue of material fact precluding summary judgment. Defendants argue the documents do not establish a triable issue regarding notice "because they do not recite or refer to objective facts showing a causal link between Stauffer and environmental impairment at Army Creek."   Army Creek at 10.   Yet, the only notice required is notice that personal injury, property damage, or the impairment of a third-party environmental right has taken place such that it is reasonably likely that a claim may be made.   Although Rhone-Poulenc must eventually show the personal injury, property damage or environmental impairment was "caused by Environmental Impairment in connection with the business of the Insured at the location designated in the Declarations" in order to recover under the policy, the proof of causation is a task separate from the demonstration of notice.   Accordingly, this court overrules defendants' objections regarding the receipt of "other due notice," adopts the reasoning in the magistrate's Report on this issue and denies defendants' motion for partial summary judgment precluding coverage for expenses incurred at the Army Creek Landfill.

 IV. DEFENDANTS' OBJECTIONS REGARDING DAYTON SITE

 *4 The issued raised by defendants' second motion for partial summary judgment is which insuring agreement, one or three, under Policy No. 039, covers the costs incurred by Rhone-Poulenc cleaning up groundwater contamination near the former Stauffer plant in Dayton, New Jersey.   Insuring agreement one provides:

The Company agrees to indemnify the Insured against all sums which the Insured shall be obligated to pay for damages by reason of the liability imposed upon the Insured by law on account of:--

(a) Personal Injury;

(b) Property Damage;

(c) Impairment or diminution of or other interference with any other environmental right or amenity protected by law;

... caused by Environmental Impairment ... Policy No. 039 at ¶  I.1 (emphasis added).

  The policy defines "property damage" as "physical injury to or physical destruction of tangible property, including loss of use of tangible property whether or not physically injured or destroyed."  Id. at ¶  III.5. Insuring agreement three provides:

The Company shall reimburse the Insured for costs and expenses of operations designed to remove, neutralize or clean up any substance released or escaped which had caused Environmental Impairment, or could cause Environmental Impairment if not removed, neutralized or cleaned up, to the extent that such costs and expenses have been incurred or have become payable by the Insured either in the endeavor to avert or reduce a loss covered by this Policy or for operations outside the Insured's premises as a result of legal obligation provided that such costs and expenses, except in respect of emergency measures undertaken to avert a loss, are incurred with prior written consent of the Company, such consent not to be unreasonably withheld."  Id. at ¶  I.3 (emphasis added).

 "Environmental impairment" is defined as

(a) the emission, discharge dispersal, disposal, seepage, release or escape of any liquid, solid, gaseous or thermal irritant, contaminant or pollutant into or upon land, the atmosphere or any water-course or body of water;

  * * *

arising out of or in the course of the Insured's operations, installations or premises, all as designated in the Declarations.  Id. at ¶  III.1.

  Defendants contend Rhone-Poulenc cannot recover for the Dayton clean up costs because the costs are covered exclusively under insuring agreement three and Rhone-Poulenc did not obtain defendants' prior written consent as required. Rhone-Poulenc argues the clean up costs are an element of property damage and therefore covered under insuring agreement one.

 The construction of an insurance policy is a question of law.  Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204, 1212 (Ill.1993).   In construing an insurance policy, the court must ascertain the intent of the parties.  Id. To ascertain the meaning of the policy language and the intent of the parties, the court must construe the policy as a whole considering the risk undertaken, the subject matter insured and the purposes of the entire contract.  Id. If the words in the policy are unambiguous, the court must afford them their plain and popular meaning. Id. If the words are ambiguous, that is, susceptible to more than one reasonable interpretation, they will be construed in favor of the insured and against the insurer who drafted the policy.  Id. Whether words are ambiguous depends not on how they are interpreted by the legally-trained mind, but how they are understood by the ordinary person.  United States Fidelity and Guaranty Co. v. Specialty Coatings Co., 180 Ill.App.3d 378, 129 Ill.Dec. 306, 535 N.E.2d 1071, 1080 (Ill.App.1989).

 *5 This court finds the policy language at issue is not ambiguous.   On the contrary, the insurance contract evidences a clear intent that clean up coverage be provided, but only subject to certain limitations.   In insuring agreement three, defendants explicitly agree to reimburse Rhone-Poulenc for the "costs and expenses of operations designed to remove, neutralize or clean up any substance released or escaped which had caused Environmental Impairment, or could cause Environmental Impairment if not removed, neutralized or cleaned up ...."  Policy No. 039 at ¶  I.3 (emphasis added).   Clean up coverage, however, is limited to those costs and expenses "incurred with [defendants'] prior written consent."  Id. Defendants explain that this limitation and others were included in the policy to reduce the risk that those insured will abuse the coverage by using it to pay for ordinary business expenses or improvements to their own property.   Defendants' Objections Re Dayton Site Motion ("Dayton Site") at 4-5.

 Rhone-Poulenc does not seek reimbursement for the clean up costs and expenses it incurred with respect to the Dayton site under insuring agreement three. Instead, Rhone-Poulenc seeks to recover those clean up costs and expenses under insuring agreement one as "damages ... on account of ... Property Damage." Policy No. 039 at ¶  I.1. Decisions relied upon by Rhone-Poulenc and the magistrate have found that insurance contracts with similar language provide coverage for environmental clean up costs.   See Patz v. St. Paul Fire & Marine Ins. Co., 15 F.3d 699 (7th Cir.1994) (insured properly recovered costs of environmental clean up under policy that covered liability for property damage);  Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 607 N.E.2d 1204 (Ill.1992) (cost of complying with mandatory injunction ordering environmental clean up recoverable as "damages because of ... Property Damage");  A.Y. McDonald Industries, Inc. v. Insurance Company of America, 475 N.W.2d 607 (Iowa 1991) (clean up costs incurred after pollution has taken place are damages because of property damage, but clean up costs incurred before pollution takes place are not).   Each of these cases involved a general liability policy that did not specifically address coverage for environmental clean up costs.   In fact, in two of the cases, the policy contained a pollution exclusion clause.   If Policy No. 039 were a similar sort of policy, this court would be inclined to construe "damages ... on account of ... Property Damage" in a similar manner, but Policy No. 039 is different.

 Policy No. 039 is not a general liability policy, but an "Environmental Impairment Liability" policy.   As such, it specifically addresses coverage of clean up costs and this language is controlling.  A.Y. McDonald, 475 N.W.2d at 618 ("[i]n the construction of insurance policies, the cardinal principle is that the intent of the parties must control;  and except in cases of ambiguity this is determined by the what the policy itself says").   Like the court in A.Y. McDonald Industries, the magistrate found clean up costs incurred after pollution has taken place are damages because of property damage, but clean up costs incurred before pollution takes place are not.   Report at 19-20.   This interpretation is untenable in light of the language of Policy No. 039.   The use of the past tense in insuring agreement three clearly demonstrates its limitations were intended to apply to both preventative and remedial clean up costs.   For example, the phrase "any substance released or escaped which ... caused Environmental Impairment" clearly refers to pollution that has already occurred.   The phrase "costs and expenses ... incurred ... in the endeavor to ... reduce a loss" plainly refers to a loss that has already occurred.

 *6 Moreover, the magistrate's interpretation of "damages ... on account of ... Property Damage" required a finding that insuring agreement three is an exception to exclusion 6(b).   The language of insuring agreement three, however, gives no indication it is meant to limit the application of exclusion 6(b).   In any event, "[e]xclusions carve out exceptions to coverage." International Environmental Corp. v. National Union Fire Ins. Co., 860 F.Supp. 511, 517 (N.D.Ill.1994).   Thus, insuring agreements, which grant coverage, do not carve out exceptions to exclusions.

 The fact that other courts construing other contracts have found environmental clean up costs may constitute damages because of property damage does not establish the meaning of such language for all time.   On the contrary, the phrase "damages ... on account of ... Property Damage" in insuring agreement one cannot be interpreted apart from the language in insuring agreement three. See Wolf Bros. Oil Company, Inc. v. International Surplus Lines Ins. Company, 718 F.Supp. 839, 842 (W.D.Wa.1989) ("[a]n examination of a specific contractual provision for the purpose of ascertaining its meaning requires contextual reference to the document as a whole");  United Equitable Ins. v. Reinsurance Co. of America, 157 Ill.App.3d 724, 109 Ill.Dec. 846, 510 N.E.2d 914, 918 (Ill.App.1987) ("The intent of parties ... must be determined with reference to the contract as a whole, not by reference to particular words or isolated phrases, but by viewing each part in light of the others").   In the cases relied upon by defendants, Wolf Bros. Oil Company, Inc. v. International Surplus Lines Ins. Company, 718 F.Supp. 839 (W.D.Wa.1989) and Alan Corporation v. International Surplus Lines Ins. Company, 823 F.Supp. 33 (D.Mass.1993), aff'd, 22 F.3d 339 (1st Cir.1994), the courts found environmental clean up costs were not damages on account of property damage because the comprehensive pollution liability policy treated clean up costs, property damage and bodily injury separately.   Similarly, this court finds the phrase "damages ... on account of ... Property Damages" in insuring agreement one does not encompass environmental clean up costs because they are clearly, specifically and separately addressed in insuring agreement three.

 Accordingly, this courts sets aside section IV of the magistrate's report discussing the Dayton site and finds clean up costs and expenses are covered exclusively under insuring agreement three.   Because Rhone-Poulenc does not seek the Dayton clean up costs under insuring agreement three, partial summary judgment is granted in favor of defendants as to Counts VII and VIII.

 V. ARMY CREEK LANDFILL AND NOVAK FARM EXPENSES

 The issue raised by International's third motion for partial summary judgment is whether Policy No. 039 covers costs incurred for on-site remediation when those costs are incurred to prevent continued off-site contamination.   Rhone-Poulenc's predecessor, Stauffer, operated a plant in Delaware that produced polyvinyl chloride materials.   From 1966 to 1968, a private waste disposal company hired by Stauffer picked up waste materials from this plant and disposed of them at the Army Creek Landfill in New Castle, Delaware.   Stauffer also operated a plant in upstate New York which produced meta-toluic acid.   In the late 1960s, a private waste disposal company hired by Stauffer picked up waste materials from this plant and disposed of them at the Novak Farm waste disposal site in New York. Rhone-Poulenc now seeks to recover investigation and clean up costs incurred at the Army Creek Landfill and the Novak Farm site.

 *7 Exclusion 6 of Policy No. 039 provides:

This policy shall not apply to or include liability for, nor costs and expenses in connection with:

(a) Improving pre-existing conditions at any premises owned, leased or rented by the Insured or for which the Insured may otherwise be responsible in order to maintain or obtain compliance with any valid and applicable statute, regulations or written instructions issued by competent authority.

(b) any cleaning-up operations reasonably considered to be routine and normal in connection with the business of the Insured;

(c) upgrading, monitoring, neutralizing, restoring, landfilling, cleaning up or inactivating any waste disposal sites used directly or indirectly by the Insured or for which they may otherwise be responsible.

PROVIDED ALWAYS that notwithstanding this exclusion, the cover provided by this insurance shall apply, subject to the terms and conditions of this Policy, to Environmental Impairment Liability arising away from any such premises or outside of any such disposal sites.   Policy No. 039 at ¶  II.6.

  Defendants argue exclusion 6(c) bars recovery of the Army Creek and Novak Farm costs because the costs occurred on-site.   Rhone-Poulenc argues these costs are covered under Policy 039 despite exclusion 6(c) because they were the result of off-site contamination.

 As discussed above, the construction of an insurance policy is a question of law and the intent of the parties, as evidenced by the plain meaning of the policy language itself considered in context, controls the interpretation. This court finds the language of exclusion 6 is not ambiguous.   Sections (a) and (b) exclude coverage for the improvement and clean up of Rhone-Poulenc's business premises and section (c) excludes coverage for the improvement or clean up of waste disposal sites used by Rhone-Poulenc.   The proviso that follows simply clarifies that coverage still applies when liability arises off-site, that is, "away" from Rhone-Poulenc's business premises or "outside" its waste disposal sites.   Thus, viewed in its entirety, exclusion 6 clearly distinguishes between environmental impairment that has occurred or may occur on the premises of Rhone-Poulenc's business and waste disposal sites (on-site), which is not covered, and environmental impairment that has occurred or may occur off the premises of Rhone-Poulenc's business and waste disposal sites (off-site), which is covered.   Since the Army Creek and Novak Farm sites were used by Rhone-Poulenc and the investigation and clean up costs at issue were incurred at those sites, the plain language of exclusion 6(c) bars coverage.

 This court's interpretation of exclusion 6 is consistent with the nature of the insurance policy as providing coverage for third-party, not first-party, liability.   It is also consistent with the language of insuring agreement three which allows coverage for on-site clean up operations undertaken with defendants' prior written consent in order "to avert or reduce a loss covered by [the] Policy," in other words, a loss off-site.   Policy No. 039 at ¶  I.3 (emphasis added).   Finally, this court's interpretation does not mean, as the magistrate feared, "that an insured would have an incentive to allow pollution or contamination to spread beyond their boundaries before taking affirmative steps to prevent or cure the environmental impairment."   Report at 23.   In fact, the opposite is true;  the interpretation offered by Rhone-Poulenc and accepted by the magistrate would give an insured an incentive to wait until contamination spread beyond its own property before addressing the problem because that way any future on-site clean up could be linked to off-site contamination and thereby covered under the policy.

 *8 Accordingly, this court sets aside the portion of the magistrate's report discussing the application of exclusion 6(c) to the Army Creek and Novak Farm costs and finds exclusion 6(c) bars recovery of the costs of any on-site clean up on the Army Creek and Novak Farm sites.   Nevertheless, this court adopts the magistrate's finding that the proper allocation of costs based on a determination of where the various parts of the Army Creek and Novak Farm clean up operations took place, is a question of fact.   Defendant's third motion for partial summary judgment is therefore denied.

 VI. DISCOVERY DISPUTE

 In addition to recommending the denial of defendants' three motions for partial summary judgment, the magistrate entered an order directing defendants to return the inadvertently produced Ford document because it is protected by the attorney-client privilege and that privilege was not waived.   Defendants' underlying motion requesting a ruling as to privilege is not a dispositive motion.   This court will set aside or modify only that portion of the magistrate's order which is shown to be clearly erroneous or contrary to law. See Fed.R.Civ.P. 72(a).

 A finding is clearly erroneous when, after considering the entire record, the reviewing court is definitely and firmly convinced that a mistake has been committed.  Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1416 (7th Cir.), cert. denied, 485 U.S. 913, 108 S.Ct. 1068, 99 L.Ed.2d 248 (1988). Accordingly, this court will not reject a magistrate's findings of fact simply because it may have reached a different decision.   As long as there are at least two permissible views of the evidence, the magistrate's choice between them cannot be clearly erroneous.   In Matter of Chicago, Milwaukee, St. Paul & Pacific R. Co., 841 F.2d 789, 798 (7th Cir.1988).

 Under Rule 26(a)(2)(B), which governs disclosure of expert testimony, a party must disclose "the data or other information considered by the witness in forming [his or her] opinions ..." Such documents must be disclosed "whether or not [they are] ultimately relied upon by the expert...."  Rule 26 Advisory Committee Notes.   In Karn v. Ingersoll Rand, 168 F.R.D. 633, 635 (N.D.Ill.1996), upon which defendants rely, this court found a document has been "considered" under Rule 26 when it has been "taken into account."  Because the Ford document was provided to one of Rhone-Poulenc's experts, defendants argue they are entitled to the document and Rhone-Poulenc may not claim the document is subject to the attorney-client privilege.

 The one-page Ford document was inadvertently contained in a 619-page report provided to one of Rhone-Poulenc's experts.   Apparently, the magistrate found no evidence that the one-page document was "taken into account" within the meaning of Rule 26(a)(2)(B).   Defendants offer no evidence to the contrary. Instead, defendants argue "considered" means, in effect, "provided."   This court finds defendants' argument unpersuasive.   Moreover, Rule 26(a)(2)(B) does not directly address the issue in this case:  the inadvertent, rather than deliberate, disclosure of an otherwise privileged communication.   In any event, the Ford document is subject to the parties' stipulation on inadvertently produced privileged communications and was consistently listed as privileged by Rhone-Poulenc.   Accordingly, this court adopts the magistrate's order dated April 1, 1997 and directs defendants to return the Ford document.

 VII. CERTIFICATION OF ISSUES FOR APPEAL

 *9 Finally, defendants request certain issues be certified for immediate appeal in the event this court declines to sustain their objections to the magistrate's three contested recommendations.   Because this court has sustained some of defendants' objections and because this court does not find the immediate appeal of any remaining issues would materially advance the ultimate termination of this litigation, defendants' request for certification of issues for appeal is denied.

CONCLUSION

 Defendants' objections regarding the application of Illinois law are overruled and section II of the magistrate's report and recommendation is adopted. Defendants' objections regarding section III of the magistrate's report are sustained in part and overruled in part.   Section III of the magistrate's report is adopted as modified and defendants' first motion for partial summary judgment precluding coverage for expenses incurred at the Army Creek Landfill is denied.   Defendants' objections regarding section IV of the magistrate's report are sustained.   Section IV of the magistrate's Report is set aside and defendants' second motion for partial summary judgment on the Dayton site (Counts VII and VIII) is granted.   Defendants' objections regarding section V of the magistrate's report are sustained in part and overruled in part. Section V of the magistrate's Report is set aside in part and adopted in part. Defendants' third motion for partial summary judgment excluding the claimed expenses at the Army Creek Landfill and Novak Farm is denied.

 Defendants' objections to the magistrate's order dated April 1, 1997 are overruled.   The magistrate's discovery order is adopted and defendants are directed to return the Ford document.   Defendants' request for certification of issues for appeal is denied.

 Not Reported in F.Supp., 1997 WL 264299 (N.D.Ill.)

Motions, Pleadings and Filings (Back to top)

1:94cv03303 (Docket) (May. 27, 1994)

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