Brooklyn, NY – A federal magistrate judge has ruled that several Long Island water districts must produce documents they tried to shield under attorney-client privilege in a sprawling contamination lawsuit against Dow Chemical and others.
Dispute over outside engineers’ role
The Albertson Water District and seven neighboring districts sued Dow, Vulcan, and Vibrantz, alleging their chemicals tainted public drinking water. During discovery, defendants sought communications between the districts’ attorneys and their outside engineering consultants, H2M Architects & Engineers and D&B Engineers & Architects.
Plaintiffs argued the engineers were “de facto employees,” making their communications privileged under the “functional equivalent” doctrine. They also invoked a “common interest privilege” tied to the Long Island Water Conference.
Court narrows privilege claims
Magistrate Judge James R. Cho rejected the broad privilege claims, noting that the Second Circuit has never formally recognized the “functional equivalent” exception. He emphasized that sharing attorney communications with third parties typically waives privilege unless narrowly justified.
Following an earlier March 2025 ruling on the “common interest” issue, the plaintiffs already agreed to produce 30 previously withheld documents. But they continued to hold back 54 documents, including five under the disputed common interest claim. The court has now ordered production of those materials.
Implications for the contamination fight
The order strengthens the defendants’ hand as they press their defense in high-stakes litigation over cleanup and remediation costs. The case is one of several pending in the Eastern District of New York over alleged toxic contamination of Long Island water supplies.
Key Points
- Long Island water districts sued Dow, Vulcan, and Vibrantz over chemical contamination.
- Plaintiffs claimed attorney-client privilege extended to outside engineers’ communications.
- Judge Cho ordered production of withheld documents, rejecting broad privilege claims.
The ruling cracks open files the water districts fought to keep closed as the toxic water battle deepens.
