DEFENDING AGAINST THE CITIZEN SUIT

Transcription

1 DEFENDING AGAINST THE CITIZEN SUIT November 16, 2017 NACWA National Water Enforcement Workshop Nancy Wilms and Tiffany Hedgpeth

2 [A]ny citizen may commence a civil action on his own behalf (1) against any person... who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the [EPA] or a State with respect to such a standard or limitation. 33 USC 1365(a) AUTHORITY FOR CITIZEN SUIT 2

3 WHAT IS AT STAKE? 3

4 The district courts shall have jurisdiction... to enforce such an effluent standard or limitation, or such an order, or to order the [EPA] to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title. 33 USC 1365(a) (emphasis added) WHAT IS AT STAKE? 4

5 Penalties For Violations 33 USC 1319(d): Up to $25,000 per violation per day BUT with inflation adjustment $52,414 (January 2017) Court to consider seriousness of violations Economic benefit from violation History of violations Good faith efforts to comply Economic impact of the penalty Other matters as justice requires Penalties Paid To United States Treasury Department Five Year Statute Of Limitations Tolled For 60-Days Based On Notice Requirement Discovery Rule May Apply WHAT IS AT STAKE? 5

6 Injunctive Relief Available To Compel Future Compliance With CWA Requirements Litigation Costs The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such an award is appropriate. 33 USC 1365(d) (emphasis added) WHAT IS AT STAKE? 6

7 DEFENDING AGAINST A CITIZEN SUIT ACTION 7

8 Pre-Suit Settlement Early Elimination Of Action/Claims Failure to Comply With 60-Day Notice Diligent Prosecution Bars Suit No Standing Fighting The Good Fight Evaluating Alleged Violations Experts DEFENDING AGAINST A CITIZEN SUIT ACTION 8

9 Settle With NGO Does not preclude government action for same violations Settle With EPA Or State Can preclude NGO action for same violations PRE SUIT SETTLEMENT 9

10 Did Plaintiff Comply With 60-Day Notice Requirement? No action may be commenced prior to sixty days after the plaintiff has given notice to EPA, the State, and the alleged violator (33 U.S.C. 1365(b)(1)(A)) Purpose: (1) allows government to step in (2) gives violator time to come into complete compliance, and (3) allows violator to resolve dispute in a non-adversarial setting PROPER NOTICE? 10

11 Notice Content (40 CFR 135.3(a)): Shall include sufficient information to permit the recipient to identify : Specific standard, limitation or order alleged to be violated Activity alleged to constitute a violation Person(s) responsible for the alleged violation Location of alleged violation Date or dates of such violation Name, address and telephone number of person giving notice PROPER NOTICE? 11

12 Diligent Prosecution 12

13 Does Diligent Prosecution (Statutory Preclusion) Bar The Suit? No action may be commenced if EPA or the State has commenced and is diligently prosecuting a civil or criminal action in a court to require compliance with the standard, limitation or order (but citizen may intervene) (33 U.S.C. 1365(b)(1)(B)) Same standard, limitation or order Diligently prosecuted BARRED BY DILIGENT PROSECUTION? 13

14 Does Plaintiff Have Standing? Article III Standing Injury-in-fact: concrete and particularized; actual or imminent Causal connection: injury must be fairly traceable to challenged action Redressability: must be likely that the injury will be redressed by a favorable decision Must Be Continuing Violation If wholly past, no plaintiff standing Plaintiff must prove existence of ongoing violations or reasonable likelihood of continuing future violations STANDING? 14

15 FIGHTING THE GOOD FIGHT 15

16 Determine strengths and weaknesses Narrow the issues/focus resources Make your case against or to limit penalties for violations EVALUATING ALLEGED VIOLATIONS 16

17 EXPERTS 17

18 Why do I need experts? What makes a good expert? Types of experts useful in enforcement Use of in-house experts: Worth the risk? EXPERTS 18

19 Explain complex topics to client, counsel, court and opposition Support technical basis for legal positions Render opinions on compliance with industry standard Support settlement negotiations/penalty assessments Develop strategy to resolve issue giving rise to enforcement WHY EXPERTS? Key to Success in Enforcement Action 19

20 Communicative Creative Confident Calm Credible Credentialed WHAT MAKES A GOOD EXPERT? 20

21 System operations and maintenance CMOM Bench marking vs other similar systems Human health ATP Economic Benefit Aquatic toxicology Modeling Treatment systems Dilution/Reasonable potential EXPERTS TO CONSIDER 21

22 UTILIZING IN HOUSE EXPERTISE 22

23 Fact Expert Hybrid fact and expert: The employee expert WITNESS TYPES 23

24 Lay (Fact) Witness: Opinions limited to those: Rationally based on the witness s perception Helpful to clearly understanding the witness s testimony or to determining a fact in issue Not based on scientific, technical or other specialized knowledge within the scope of Federal Rule of Evidence 702 Federal Rules of Evidence (FRE), Rule 701 OPINION TYPES 24

25 Expert Witness: May offer opinions if: The expert s scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue The testimony is based on sufficient facts or data The testimony is the product of reliable principles and methods; and The expert has reliably applied the principles and methods to the facts of the case FRE, Rule 702 OPINION TYPES 25

26 Hybrid fact/expert Classic employee expert Expert in her field who also has firsthand knowledge of or involvement in underlying facts giving rise to enforcement action OPINION TYPES 26

27 Complex issues to consider before making decision: How should employee be categorized? What are the resulting disclosure requirements? What is the scope of the associated privilege/potential scope of discovery? CHOOSE WISELY 27

28 Goal is finding where a particular employee can best assist defense of enforcement action while minimizing the risks. Fact witness? Testimony best kept to strictly factual issues to avoid accusation of improper expert opinion Expert Witness? Ensure employee is in no way involved with facts leading to enforcement action Hybrid fact/expert witness? Allows both fact and expert testimony WHAT IS THE RIGHT CATEGORY? 28

29 2010 amendment to FRCP 26 changed disclosure requirements Prior to that time, the hybrid witness did not have to be disclosed as expert 2010 amendments added modified disclosure requirements for the hybrid witness Retained (or regularly employed ) experts must disclose: Complete statement of all opinions and basis therefore All facts and data considered in forming opinions Exhibits Qualifications Publications (last 10 years) and prior testimony (last 4 years) Compensation FRCP 26(a)(2)(B) Hybrid fact/expert witness - More limited/less burdensome requirements Subject matter of expert testimony Summary of facts and opinions to offer FRCP 26(a)(2)(C) THE CHANGING REALM OF DISCLOSURE 29

30 The distinguishing characteristic between expert opinions that require a report and those that do not is whether the opinion is based on information the expert witness acquired through percipient observations or whether, as in the case of retained experts, the opinion is based on information provided by others or in a manner other than by being a percipient witness to the events in issue. United States v Sierra Pacific Industries, Case No. CIV S , 2011 U.S. Dist. Lexis 60372, *16 (E.D. Cal. May 26, 2011) THE CHANGING REALM OF DISCLOSURE 30

31 PRIVILEGE 31

32 Well-defined scope Fact witness employee: Attorney-client communications are protected FRE 501 (set forth in case law and statute) Retained experts: Limited protection for communications with counsel FRCP, Rule 26(b)(4)(C) PRIVILEGE 32

33 PRIVILEGE Still evolving: Hybrid Fact/Expert Witnesses Advisory Committee rejected extending same privileges to hybrid witnesses that were provided to outside experts Both the Subcommittee and the Committee concluded that the time has not yet come to extend the protection for attorney expert communications beyond experts required to give an (a)(2)(b) report. Drafting an extension that applies only to expert employees of a party might be tricky, and might seem to favor parties large enough to have on the regular payroll experts qualified to give testimony. Still more troubling, employee experts often will also be fact witnesses by virtue of involvement in the events giving rise to the litigation. An employee expert, for example, may have participated in designing the product now claimed to embody a design defect. Discovery limited to attorney-expert communications falling within the enumerated exceptions might not be adequate to show the ways in which the expert s fact testimony may have been influenced. Sierra Pacific at *23-24 (citing Report of the Civil Rules Advisory Committee (May, 8, 2009, amended June 15, 2009), pp. 4-5) 33

34 PRIVILEGE Hybrid Fact/Expert Witnesses Sierra Pacific at *22 For example, if an employee engineer designed a product that was the subject of a product liability case, it would be difficult to separate the engineer s sense impressions leading up to the design of the product with his expert opinions at trial, and to distinguish between attorney communications regarding the former from those regarding the latter. PacifiCorp v Nw. Pipeline GP, 879 F. Supp. 2d 1171, 1212 (D. Or. 2012) Granting motion to compel discovery of communications authored by, received by or copied to [defendant s] non-retained experts on topics about which they intend to testify, many of which involved [defendant s] in-house and outside counsel. Hybrid fact/expert witness waived all applicable privileges and protections for communications between counsel and those witnesses, because the fact-finder was entitled to evaluate potential biases in the witness testimony revealed in communications with counsel. PacifiCorp at 1213 Accord, Luminara Worldwide, LLC v Liown Elecs. Co., 2016 U.S. Dist. Lexis *11-12 (D. Minn. November 15, 2016) 34

35 THE DILEMMA 35

36 What to do when best testifying expert happens to be an employee of the enforcement action target? Pros: Knows more about system Can more effectively educate judge Less expensive Not a hired gun Eliminates concern that a designated fact witness s testimony is characterized as expert opinion Cons: Bias Knows too much Not polished witness Undefined scope of discovery Less privilege protection THE DILEMMA 36

37 Early decision will avoid potentially dire consequences down the road Key Questions: Do you need to/want to work with the witness to formulate strategy to defend against enforcement? Do you need to/want to work with the witness to develop and respond to discovery? Can the witness strictly limit her testimony to personal knowledge of involvement in facts giving rise to enforcement action? How would witness be perceived? MAKING THE RIGHT CALL 37

38 SO.WHAT ABOUT THIS GUY? 38