In complex environmental remediation and construction lien litigation, the moving party sought production of numerous documents withheld on claims of solicitor‑client privilege, litigation privilege, and relevance.
The court reviewed over 1,600 documents including materials from a consulting engineer, internal environmental steering committee meetings, and documents produced in related environmental contamination litigation.
The court held that the party asserting privilege bears the burden of proving it on a balance of probabilities and rejected broad claims that entire meetings or communications involving counsel were privileged merely because legal issues might arise.
Applying the functional approach to third‑party communications and the dominant purpose test for litigation privilege, the court determined that many communications primarily concerned business or factual remediation matters and were not privileged.
Documents relating to the related environmental action were found relevant to the counterclaim and ordered produced, subject to further submissions regarding specific documents identified in a schedule.
