## Facts

- The EPA and DOJ investigated Ponderosa Paint Manufacturing, Inc. for alleged hazardous-waste disposal violations.
- Ponderosa retained counsel, who hired environmental consultant Mark Torf and Torf Environmental Management to assist counsel in responding to the investigation.
- Torf performed both regulatory/compliance tasks (e.g., responding to information requests and coordinating cleanup) and litigation-oriented tasks directed by counsel (e.g., investigation, analysis, and preparation of materials for legal defense).
- Torf created and assembled documents including site-assessment materials, summaries, and communications; some were provided to the government, while others were withheld.
- A federal grand jury subpoenaed Torf for all documents related to hazardous-waste handling at specified sites, including Torf’s reports and related materials.
- Torf and Ponderosa withheld a subset of documents, asserting work-product protection (and, to a limited extent, attorney-client privilege), while the government argued the documents were essentially regulatory-compliance materials that would have been created in similar form regardless of litigation.

## Issues

1. Whether consultant-created documents prepared at counsel’s direction are protected work product when created “because of” anticipated litigation, despite overlapping regulatory-compliance purposes.
2. How dual-purpose documents (business/regulatory and litigation-related) are treated under the work-product doctrine.
3. Whether the government could overcome any work-product protection by showing substantial need and undue hardship under Rule 26(b)(3), and whether that argument was preserved.

## Decision

- The Ninth Circuit reversed the order denying the motion to quash the subpoena as to the withheld documents.
- The court held the withheld documents were protected by the work-product doctrine under the Ninth Circuit’s “because of” test.
- The court concluded that dual purposes did not defeat protection where anticipated litigation was a substantial factor and the documents would not have been created in substantially similar form absent that prospect.
- The court declined to consider the government’s substantial-need/undue-hardship argument because it was not preserved by objections in the district court to the magistrate judge’s relevant findings.
- The court vacated the civil contempt order against Torf for refusing to produce the protected materials.

## Legal Principles

- Work product includes documents prepared by a lawyer’s agents (including consultants) when prepared in anticipation of litigation.
- Under the “because of” test, a document is prepared in anticipation of litigation if it was created because of anticipated litigation and would not have been created in substantially similar form but for that prospect.
- Dual-purpose documents may be work product if the litigation purpose is a substantial factor and materially shapes the document’s creation.
- Facts are discoverable, but compilations, selections, arrangements, and analyses that would reveal litigation strategy may be protected work product.
- A party waives appellate review of a magistrate judge’s factual findings by failing to object to those findings in the district court.

## Conclusion

The court held that materials prepared by an environmental consultant at counsel’s direction were protected work product under the “because of” test even though they also served compliance functions, and it quashed the subpoena as to those materials and vacated contempt after finding the government failed to preserve any argument to overcome the protection.


In re Grand Jury Subpoena (Mark Torf/Torf Environmental Management), 357 F.3d 900 (9th Cir. 2004)