In re Grand Jury Subpoena
| Decision Date | 26 November 2003 |
| Docket Number | No. 03-30107.,No. 03-30102.,No. 03-30104.,03-30102.,03-30104.,03-30107. |
| Citation | 357 F.3d 900 |
| Parties | In re GRAND JURY SUBPOENA (MARK TORF/TORF ENVIRONMENTAL MANAGEMENT), United States of America, Petitioner-Appellee, v. Mark Torf, Torf Environmental Management, Respondent-Appellant. In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), United States of America, Petitioner-Appellee, Dennis D. Ellis, Intervenor-Appellant. In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), United States of America, Petitioner-Appellee, Dennis D. Ellis, Intervenor-Appellant. In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), United States of America, Petitioner-Appellee, Ponderosa Paint Manufacturing, Inc., Intervenor-Appellant. In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), United States of America, Petitioner-Appellee, Ponderosa Paint Manufacturing, Inc., Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Nevin, Nevin, Benjamin, & McKay, Boise, ID, for appellant-Torf.
Paul Westberg, Westberg, McCabe & Collins, Boise, ID, for appellant-Ellis.
John C. McCreedy, Naylor, Hales & McCreedy, Boise, ID, for appellant-Ponderosa Paint Manufacturing, Inc.
Katherine Barton, Department of Justice, Environmental & Natural Resources Division, Washington, DC, for appellee-United States.
Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. No. GJ-00-00036-BLW.
Before: THOMPSON, HAWKINS, and BERZON, Circuit Judges.
IT IS HEREBY ORDERED that the opinion filed November 26, 2003 and published at 350 F.3d 1010 is amended as follows:
I
At 350 F.3d at page 1013, the paragraph which begins "We have jurisdiction over these consolidated appeals", and which paragraph immediately precedes "BACKGROUND" is deleted, and the following paragraph is inserted in its place:
We have jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1291. We reverse the district court's order denying the motion to quash. Torf created the withheld documents at the direction of McCreedy, an attorney who was hired to defend Ponderosa in impending litigation with the government. The documents are protected by the work product doctrine because they were created in anticipation of litigation. The government did not contend in the district court, as it had contended before the magistrate judge and as it contends in its brief in this court, that it had either a substantial need for the documents or that it would incur undue hardship in obtaining substantially equivalent information. See Fed.R.Civ.P. 26(b)(3). We decline to consider this contention by the government in this appeal. Because the subpoena should have been quashed, we vacate the district court's order holding Torf in civil contempt for not complying with it.
II
At 350 F.3d at page 1018, the paragraph which begins "Finally, the government contends ...", and which paragraph immediately precedes "CONCLUSION" is deleted, and the following paragraphs are inserted in its place:
The government contended in proceedings before the magistrate judge, as it does in its brief filed with this court, that it has a substantial need for the withheld documents and that it would incur undue hardship in obtaining substantially equivalent information. See Fed.R.Civ.P. 26(b)(3). Ponderosa responded to these arguments before the magistrate judge, asserting that it had provided the government with documents pertaining to the applicable sites pursuant to the Information Request and Consent Order, and the government's representatives were present at those sites on several occasions. The magistrate judge resolved the dispute in favor of Ponderosa, ruling that the government had "not shown or demonstrated substantial need, hardship or unavailability necessary to overcome the qualified immunity of work product." The government did not object in the district court to that ruling.
The failure to object in the district court to a magistrate judge's finding of fact waives a challenge to that finding. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir.1998). The failure to object to a magistrate judge's "pure" legal conclusion, however, may not. Id. "Rather, a failure to object to such a[pure legal] conclusion `is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal.'" Id. quoting Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.1991).
As in Turner, the magistrate judge's ruling in this case involves factual as well as legal determinations. The ruling defies classification as either a purely factual finding or a purely legal conclusion. What is clear, however, is that the ruling explicitly sets forth the magistrate judge's decision rejecting the very arguments the government now wishes to make, and reciting the facts upon which the magistrate judge's decision is based. What is also clear is that, with this decision in hand, the government eschewed presenting to the district court any contention of substantial need or undue hardship. Instead, it framed the issue as limited to whether the work product doctrine would protect a document if it were generated for a purpose other than litigation. The government stated:
In sum, a proper analysis as to the withheld documents must be conducted on a document by document basis. If the document would not have been generated `but for' litigation, it is privileged. However, if it was generated for purposes other than litigation, even though litigation may have been a `real possibility', it must be disclosed. Government's motion for de novo review of the magistrate court's order, filed in the district court Nov. 1, 2002, at 7 (emphasis added).
In view of the foregoing, we decline to consider the government's contention made in its brief filed with this court, but not presented to the district court, that it has a substantial need for the withheld documents and that it would incur undue hardship in obtaining substantially equivalent information.
IT IS FURTHER ORDERED that petitions for rehearing and for rehearing en banc may be filed following the filing of this Order Amending Opinion. See Ninth Circuit General Order 5.3a.
In May 2000, the Environmental Protection Agency ("EPA") informed Ponderosa Paint Manufacturing, Inc. ("Ponderosa") that it was under investigation for violating federal waste management laws. Ponderosa hired attorney John McCreedy to advise and defend it in anticipated civil and criminal litigation with the government. McCreedy, on behalf of Ponderosa, retained Mark Torf, an environmental consultant, to assist him in preparing a legal defense for Ponderosa and as an environmental consultant on Ponderosa's cleanup efforts at the sites that aroused the EPA's suspicions.
Seeking to avoid litigation, Ponderosa submitted numerous documents to the EPA pursuant to an Information Request from the EPA and an Administrative Consent Order ("Consent Order") between Ponderosa and the EPA. Many of these documents were prepared by Torf. The EPA was satisfied that Ponderosa complied with both the Information Request and the Consent Order.
On March 6, 2002, however, a grand jury investigating Ponderosa issued a subpoena to Torf for "any and all records relating in any way to any work" regarding "the disposal of waste material ... from Ponderosa Paint[.]" Torf produced some documents relating to his environmental-consultant responsibilities, but withheld other documents, claiming on behalf of Ponderosa that the withheld documents were protected by the work product doctrine. The magistrate judge overseeing the grand jury proceedings agreed, and quashed the subpoena. The district court reversed the magistrate judge's order, denied the motion to quash, and held Torf in civil contempt for refusing to produce the documents.
We have jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1291. We reverse the district court's order denying the motion to quash. Torf created the withheld documents at the direction of McCreedy, an attorney who was hired to defend Ponderosa in impending litigation with the government. The documents are protected by the work product doctrine because they were created in anticipation of litigation. The government did not contend in the district court, as it had contended before the magistrate judge and as it contends in its brief in this court, that it had either a substantial need for the documents or that it would incur undue hardship in obtaining substantially equivalent information. See Fed.R.Civ.P. 26(b)(3). We decline to consider this contention by the government in this appeal. Because the subpoena should have been quashed, we vacate the district court's order holding Torf in civil contempt for not complying with it.
The Resource Conservation and Recovery Act of 1976 ("RCRA"), as amended, 42 U.S.C. § 6901 et seq., established a "`cradle to grave' regulatory system overseeing the treatment, storage, and disposal of hazardous waste." United States v. MacDonald, 339 F.3d 1080, 1082 (9th Cir.2003). Hazardous waste may only be transported to, stored at, or disposed of at facilities in accordance with the statute. 42 U.S.C. § 6925(a). RCRA requires that records be maintained regarding the quantity, location, and storage of hazardous waste. Regulations issued pursuant to the Hazardous Materials Transportation Act of 1976 ("HMTA"), as amended, 49 U.S.C. §§ 5901-5927, also require that documentation regarding hazardous waste be kept. 49 C.F.R. Parts 100-185.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. §§ 9601-9675, requires persons responsible for the release of hazardous waste to pay cleanup costs. CERCLA authorizes the...
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