Opinion
No. 03-CV-588S(F).
October 28, 2004
LAW OFFICE OF DAVID J. SEEGER, DAVID J. SEEGER, of Counsel, Buffalo, New York, Attorneys for the Plaintiff.
PHILLIPS LYTLE, LLP, KEVIN M. HOGAN, of Counsel, Buffalo, New York, Attorneys for Defendants Allied Group, et al.
HISCOCK BARCLAY, LLP, STEPHANIE TORRES, of Counsel, Buffalo, New York, Attorney for Defendant Town of West Seneca.
ORDER
Plaintiff's motion to compel discovery (Doc. No. 34) is GRANTED. In this private citizen action, Plaintiff seeks relevant information from the owner or operator of the premises at which alleged violations of the Clean Air Act ("Act") occurred. Defendants argue that only information relating to construction sites within the 423 acre industrial park ("site") are relevant to Plaintiff's claim that Defendants have violated the Act by engaging in or allowing storm waste water to flow from the site into navigable waters and tributaries beyond the scope of any permit issued by New York state. Specifically, Defendants contend that, upon the sale of a parcel within the site for development by a purchaser, the site's owner or operator, here Defendant North America Center Joint Venture, is relieved of compliance obligations under a state issued storm waste water discharge permit as to such parcel. However, Defendants fail to point to any provisions of the Act, regulation, or caselaw supporting such a crabbed interpretation of the reach of the Act. Accordingly, the court cannot find that Plaintiff's requests are irrelevant to his clams and Plaintiff's failure to allege violations arising from construction activity on specific parcels within the site does not foreclose Plaintiff's entitlement to the discovery at issue on Plaintiff's motion.
Defendants' motion to compel (Doc. No. 42) from Plaintiff is GRANTED. Plaintiff failed to timely object or provide answers to Defendants' Second Set of Interrogatories and Requests for Documents related to such interrogatories based on the attorney-client privilege and, accordingly, such objection is waived. Moreover, Plaintiff failed to timely provide the required privilege log to preserve such objection. See Lugosch v. Congel, 291 F.R.D. 220, 239 (N.D.N.Y. 2003) (failure to timely provide privilege log constitutes waiver of asserted privilege). Plaintiff's objections lack merit in any event. The information sought by Defendants, except for communications made for the purpose of obtaining legal advice, Vingelli v. U.S. Drug Enforcement Agency, 992 F.2d 449, 454 (2d. Cir. 1993), is not within the privilege. Gerald B. Lefcourt, P.C. v. United States, 125 F.3d 79, 86 (2d Cir. 1997). However, Plaintiff, as noted, has waived the objection. Davidson v. Goord, F.R.D. 73, 77 (W.D.N.Y. 2003). Such waiver applies equally to Plaintiff's failure to timely object to Defendants' document requests. See Land Ocean Logistics, Inc. v. Aqua Gulf Corp., 181 F.R.D. 229, 236-37 (W.D.N.Y. 1998).
Plaintiff's effort to forestall Defendants' discovery request by filing a motion for a protective order pursuant to Fed.R.Civ.P. 26(c) is unavailing as such motion was filed on September 24, 2004 well after the 30 days period within which to serve timely objections to Defendants' Second Set of Interrogatories and Document Request served on August 17, 2004. See BAIKER-McKEE, JANSSEN, CORR, Federal Civil Rules Handbook (Thompson-West 2004) at 592. ("Normally, the [Rule 26(c)] motion must be filed before the discovery is to occur, unless there is no opportunity to do so.") (citing cases). As the court finds Defendants' motion should be granted, Plaintiff's motion for a protective order is DISMISSED as moot.
CONCLUSION
Plaintiff's motion to compel is GRANTED; Defendants' motion to compel is GRANTED; Plaintiff's motion to enlarge the Scheduling Order is GRANTED; Plaintiff's motion for a protective order is DISMISSED as moot.
Defendants shall provide the requested discovery within 30 days; Plaintiff shall provide discovery requested by Defendants within 14 days.
No costs to either party.
SO ORDERED.