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Olson v. Acessory Contorl and Equipment Corproation8/2/2000
This certified appeal raises two principal issues. First, we must determine the extent to which the attorney-client privilege applies to communications between counsel for a company and an environmental consulting firm retained by counsel to assist in responding to an order issued by the department of environmental protection. Second, we must determine whether, if privileged, the communications fall within the crime-fraud exception to the attorney-client privilege. The plaintiff, William Olson, appeals from the judgment of the Appellate Court affirming the judgment of dismissal by the trial court following the trial court's grant of a protective order and motion in limine barring the use of communications between the expert environmental consulting firm retained by an attorney for the named defendant, Accessory Controls and Equipment Corporation. The plaintiff contends that: (1) the Appellate Court improperly determined that the communications in question were privileged; and (2) even if the communications were privileged, the Appellate Court improperly failed to apply the crime-fraud exception.
We conclude that the Appellate Court properly affirmed the trial court's application of the attorney-client privilege to the communications at issue in this case. We conclude further, as a matter of first impression, that communications otherwise covered by the attorney-client privilege lose their protected status when they are procured with the intent of furthering a civil fraud. Under the facts of this case, however, we conclude that the plaintiff did not meet his burden of establishing that the exception applies. Accordingly, we affirm the judgment of the Appellate Court.
The record discloses the following relevant facts. In December, 1981, the plaintiff was employed by the defendant as an engineering technician in the defendant's Windsor plant. The defendant manufactured, among other products, air conditioning equipment, jet air starters and ground power units for airplanes. By 1985, the plaintiff, who had been promoted to plant manager, was responsible for the manufacturing operations. The plaintiff held this position at all times relevant to the present case.
On October 11, 1989, the state department of environmental protection (department) conducted an on-site inspection of the defendant's Windsor plant. The department documented its findings in an inspection report that identified two areas of concern regarding hazardous waste discharge and storage activity. First, the inspection report noted bulges in an outside storage drum that contained potentially hazardous waste. Second, the inspection report documented that outdoor paint booth vents aimed at the ground were causing residue buildup and soil contamination.
On January 30, 1990, the department issued an order to the defendant requesting information and a remedial plan concerning the storage, disposal and removal of hazardous waste at the plant. That order did not specifically identify the two areas of concern documented in the inspection report. Instead, the order reflected a broad mandate to: "1. Bring all waste handling procedures and facilities into compliance with Connecticut's Hazardous Waste Management Regulations. 2. Effect the removal and proper disposal of all toxic, hazardous, and other industrial wastes now improperly stored on-site in a manner approved by the Commissioner of Environmental Protection. 3. Investigate the degree and extent of groundwater, surface water, and soil contamination resulting from chemical and waste storage, handling and disposal activities at the [Windsor] site. 4. Take the necessary remedial actions to eliminate or minimize the contamination resulting from such activitie
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