Drinker Biddle & Reath has lost a nearly five-year-long battle to obtain deposition transcripts from an environmental suit against ExxonMobil for use in defending its own clients in other litigation.

A Mercer County judge held, in a decision released for publication on May 14, that "the general societal interest and the pecuniary private interest of itself and its clients asserted by [Drinker Biddle] in support of its application do not outweigh the State’s substantial interest in favor of confidentiality of unfiled discovery materials."

The transcripts were of depositions of defense experts in N.J. Dept. of Environmental Protection v. ExxonMobil, UNN-L-3026-04 and L-1650-05, a suit for natural resource damages stemming from contamination at ExxonMobil refineries in Linden and Bayonne.

Natural resource damages, recoverable under the New Jersey Spill Compensation and Control Act, represent the lost value to the public of resources like air, drinking water and wildlife as a result of contamination.

Excerpts of the transcripts had been attached to motion papers filed in court by the DEP, but Drinker Biddle — which is not involved in the case — sought the entire transcripts by way of an Open Public Records Act request to the Division of Law in November 2008.

After the Division of Law denied the request, on the ground that discovery materials not filed in court are exempt, the firm filed an order to show cause seeking the documents under OPRA and the common-law right of access.

Superior Court Judge Paul Innes ruled against the firm on both grounds and threw out the case, Drinker Biddle & Reath v. N.J. Dept. of Law and Public Safety, L-63-09.

The Appellate Division agreed with Innes that the records were exempt under an OPRA provision preserving privileges and grants of confidentiality that predated its 2002 enactment, including case law that treats unfiled discovery as not publicly accessible.

But the panel reversed on the common-law claim in a precedential holding that recognized Drinker Biddle’s right of access based on the public’s interest in the state’s use of resources in pursuing the ExxonMobil litigation. It remanded the case to Innes to balance the interests.

In Tuesday’s decision, Innes found "substantial need for the protection of unfiled discovery information in a case such as this, where the State, as a party in environmental litigation, is seeking to perform its obligation to represent its citizens in an effort to safeguard and to protect the public and the public interest."

He pointed out that the transcripts "provide an intimate look into the thoughts and mental processes of the attorney" and thus, allowing access to them would make Drinker Biddle "privy to the mental processes and strategy of the attorneys representing the State."

That would place the DEP at a "severe disadvantage," because it "would have no reciprocal right to the unfiled discovery in the custody of [Drinker Biddle] and other private attorneys who represent parties in environmental litigation." And it could affect agency decision-making and investigation of polluters, Innes said.

He rejected "the notion that government agencies will escape scrutiny over their handling of litigation if unfiled discovery materials are not accessible," since public access to case documents filed with the court ensures oversight.

Innes had the Attorney General’s Office contact ExxonMobil to ask where it stood on releasing the transcripts. The company replied that it had no position.

Division of Law spokesman Lee Moore called Innes’ ruling correct and consistent with case law. "As we argued in the case, there are many good reasons for expert testimony not filed with the Court to remain confidential," he said.

DEP spokesman Lawrence Ragonese says the ExxonMobil case is "not hidden away" and the agency is "trying to resolve it on behalf of the residents of the state."

Allan Kanner, of Kanner & Whiteley in New Orleans, who took the depositions as outside counsel for the DEP in the ExxonMobil suit, said "it is hard to fathom how anybody couldn’t adequately protect their interests without this stuff," adding "people know how to defend these cases."

He notes that the DEP has resolved more than 2,000 natural resource damages claims since it started bringing them in 2003. It is ready to go to trial in ExxonMobil but the company is seeking further discovery in motions that were argued Tuesday, he says.

ExxonMobil’s lawyer, Theodore Wells Jr. of Paul Weiss Rifkind Wharton & Garrison in New York, was out of the office traveling and could not be reached.

Drinker Biddle, a 650-lawyer firm based in Philadelphia, litigated the OPRA case pro se through John Mitchell of its Princeton office, who did not return a call.

The firm represents defendants Maxus Energy Corporation and Tierra Solutions Inc. in N.J. Dept. of Environmental Protection v. Occidental Chemical Corp., ESX-L-9868-05, a natural resources case involving dioxin contamination of the Passaic River.

Mary Pat Gallagher is a reporter for the New Jersey Law Journal, a Legal affiliate