On Monday, the District of New Mexico denied two discovery requests in the case against the United States, the Environmental Protection Agency (EPA), and various corporations accused of being responsible for the Gold King Mine Release, a large environmental spill. One of the denied motions was a request for individual notes to be included in the discovery, the other was a motion to “clawback” a document already sent as part of discovery.
Two plaintiffs, the Navajo Nation, represented by Hueston Hennigan and its Department of Justice, and the state of New Mexico, represented by its Attorney General and Kelley Drye & Warren, requested the court to require notes made by Nicholas Hayduk, an alleged witness associated with two defendants, Kinross Gold U.S.A. and Kinross Gold Corp. represented by Holland & Hart, during his two-day deposition. The defendants claimed the notes were “protected by the attorney-client privilege.”
Hayduk, according to the order denying the plaintiff’s request, took “scribble notes” as he reviewed the documents he was sent to prepare for his deposition to keep track of time, make observations, and remind him of things he wanted to discuss with his attorneys before the deposition.
The witness reportedly did not use the notes during his deposition, which Special Master Alan C. Torgerson used as evidence that the documents did not need to be shared during discovery. The order reported that the plaintiffs were not able to prove that the notes “refreshed Hayduk’s memory” or were used in his testimony so the court ruled that the rule used by the Plaintiffs in their argument, Federal Rule of Evidence 612, was not applicable.
The second order addressed a request made by one defendant, Sunnyside Gold Corporation, represented by Holland & Hart and Crowley Fleck, to allow them to take back an “inadvertently produced document” used at the same deposition of Hayduk. The document reportedly should have been labeled as “protected by the attorney-client privilege,” and did not need to be produced. It consisted of emails from July 7 to August 3, 2015 between counsel for Sunnyside Gold Corporation, Kinross Gold USA, and their clients.
The two plaintiffs who filed the other request argued, according to the order, that the company “waived any claim of privilege” when it did not object to the request for the document during the deposition. The Special Master, Torgerson, said he agreed with this argument and that although the document did not need to be produced, the privilege was waived based on the company allowing Hayduk to “continue to be questioned about the document for a substantial amount of time.” The court ruled that “the document may be used in this litigation as though it had been voluntarily produced in discovery.”
Utah was previously involved in the case, but the state settled with the EPA, which agreed to pay $3 million in funds to clean up the effects of the spill in Utah and help with other Utah-based environmental projects.