February 19, 2017

PA Fracker Can’t Keep Pollution Tests From Residents

Residents near a Range Resources fracking operation can seek records of air monitoring and other pollution tests that a consultant performed at company gas wells and related facilities
By Matt Fair, Law360, January 29, 2016

Residents near a Range Resources fracking operation can seek records of air monitoring and other pollution tests that a consultant performed at company gas wells and related facilities, the Pennsylvania Superior Court ruled Friday, shooting down the company’s objections.

A three-judge panel agreed Friday that URS Corp.’s environmental studies of Range Resources-Appalachia LLC’s well sites and other gas-related facilities in Pennsylvania could be sought by residents suing over contamination near Range’s so-called Yeager drill site in Washington County. The trial court has the means to ensure no privileged material is released in discovery, the panel said.

“Based on the record at hand, we conclude that Range has no grounds for objecting to residents’ request for relevant information possessed by URS in its capacity as an engineering consultant that was not retained in anticipation of litigation,”
the court ruled in an opinion penned by Judge Jacqueline O. Shogan. “Needless to say, the trial court has options for balancing Range’s interest in protecting privileged information possessed by URS and residents’ interest in receiving relevant information to which they are entitled.”

The May 2012 complaint alleges that environmental contamination stemming from fracking operations at the Range Resources Corp. unit’s Yeager site caused the residents personal injuries and property damage. The plaintiffs, including Loren Kiskadden and Stacey Haney, lived on land adjacent to the drill site at the time the suit was filed.

The residents filed notice in August 2014 of their intent to serve URS with a subpoena seeking information about environmental testing the consultant had conducted on Range’s behalf throughout the state.

Range, however, objected to the subpoena on the grounds that the company had retained URS as an expert consultant and that the discovery request would inevitably include material protected by attorney-client and work product privileges enshrined in the Pennsylvania Rules of Civil Procedure.

The company argued that it had retained URS for an assortment of projects, including for services Range sought in anticipation of litigation and for trial preparation.

The residents, meanwhile, countered that attorneys for Range could not identify what particular material was privileged and what was not.

They pointed to an appearance by Range attorneys before the board of supervisors in one Washington County township where they offered to share the results of emissions tests.

A trial judge, noting the lack of evidence of URS’ being retained in anticipation of litigation or for trial preparation, ultimately agreed that Range’s objections should be quashed.

The instant appeal to the Superior Court followed.

While discovery orders are generally not allowed to be appealed by themselves, the Superior Court agreed with Range that issues related to the potential release of privileged and confidential material was “an important privacy right deeply rooted in public policy.”

Despite agreeing that the case was worthy of consideration on appeal, the Superior Court refused to give its blessing to Range’s objections.

“Even if counsel for Range engaged URS in 2011 as an expert consultant in anticipation of litigation, Range admits that it also retained URS as a nonexpert to perform air monitoring at select natural gas sites and that the scope of residents’ subpoena includes nonprivileged materials,” the opinion said.

An attorney for Range did not immediately return a message seeking comment.

Judges John T. Bender, Jacqueline O. Shogan and John L. Musmanno sat on the panel for the Superior Court.

The plaintiffs are represented by John Smith and Kendra Smith of Smith Butz LLC.

Range is represented by Bruce Rende of Robb Leonard Mulvihill LLP and Kenneth Komoroski of Morgan Lewis & Bockius LLP.

The case is Haney et al. v. Range Resources-Appalachia LLC et al., case number 257 WDA 2015, in the Superior Court of the State of Pennsylvania.