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Meritor, Inc. v. State, ex rel. Board of Regents of University of Oklahoma

Court of Appeals of Oklahoma, Division I

September 27, 2019

MERITOR, INC., Petitioner/Appellant,

          Mandate Issued: 10/30/2019


          Sanford C. Coats, Melanie Wilson Rughani, CROWE & DUNLEVY, Oklahoma City, Oklahoma, for Petitioner/Appellant,

          Stephanie Theban, RIGGS ABNEY, NEAL, TURPEN, ORBISON & LEWIS, Tulsa, Oklahoma, and Marquette Wolf, TED D. LYON & ASSOCIATES, Mesquite, Texas, for Intervenor/Appellee.

          Kenneth L. Buettner, Judge

         ¶1 Petitioner/Appellant Meritor, Inc., appeals the denial of its request for a permanent injunction barring Respondent State of Oklahoma, ex rel. Board of Regents of the University of Oklahoma (OU) from releasing certain documents in response to a request filed under the Oklahoma Open Records Act (OORA or the Act). Meritor was a defendant in several suits for groundwater contamination in Mississippi federal and state courts. In preparing its defense to those actions, Meritor's counsel retained a non-testifying consulting expert who had water samples relevant to the litigation analyzed by an OU lab. An attorney representing some of the plaintiffs in the Mississippi actions sought to obtain the OU lab results ("the records") via an OORA request. After OU indicated it would release the records absent a court order barring their release, Meritor unsuccessfully sought a permanent injunction against OU. On de novo review of the question of law presented, we find the records sought are exempt from disclosure under OORA on two bases. As a matter of first impression in Oklahoma, we adopt the United States Supreme Court's holding that matters which are "normally or routinely privileged" come within the Act's evidentiary privilege exemption. The records at issue here are work product of an undisclosed, non-testifying expert, which is normally and routinely privileged and therefore exempt from disclosure under the Act. Additionally, the records fall within the Act's research results exemption. We reverse the trial court's order denying Meritor's request for a permanent injunction and remand with directions to the trial court to enter a permanent injunction barring release of the records at issue in this case.

         ¶2 Meritor filed its Petition seeking an injunction against OU August 24, 2018. It asserted that in 2016, ten plaintiffs had sued it and Petitioner Textron, Inc. in federal court in Mississippi for property damage. [1] Meritor asserted that in preparing its defense in the Mississippi cases, it retained a consulting expert to conduct compound specific isotope analysis (CSIA) on groundwater in the subject property. The consulting expert hired scientists in the Isotope Lab in the Geology and Geophysics Department of OU to perform the analysis. Meritor further asserted it had elected not to use or disclose the consulting expert nor to use the CSIA results in the litigation. Meritor alleged it therefore did not disclose the expert or the results from the OU lab to anyone, including any testifying expert in the Mississippi actions. Meritor alleged it had asserted the consulting expert privilege when the Mississippi plaintiffs sought production of CSIA results in that case.

         ¶3 Meritor next asserted the Mississippi plaintiffs' counsel, Marquette Wolf, had made an OORA request to its consulting expert's subcontractor, the lab at OU, seeking records relating to "any and all groundwater sampling for CSIA... analyses on Chlorinated Ethenes in Grenada, Mississippi... Entities involved included Ramboll, T&M, and Thompson Hine." [2] Meritor alleged the documents sought in the OORA request were privileged and not records as defined by the OORA. Meritor asserted OU had indicated that records protected by an evidentiary privilege are not considered records under OORA, but that unless prevented by a court order, it intended to produce the requested materials. Meritor asserted claims for a temporary injunction and for violation of OORA.

         ¶4 On the same day, Meritor filed a Motion for Temporary Restraining Order and Temporary and Permanent Injunction, in which it asserted it would be irreparably harmed if OU disclosed the records. Following a brief hearing, the trial court entered a Temporary Restraining Order barring release of the records August 24, 2018. On August 23, 2018, Meritor and Marquette Wolf participated in a telephonic hearing with a Federal Magistrate in Mississippi, in which Meritor sought an order from that court barring Marquette Wolf from receiving the records. In its Order, the magistrate determined that in the August 23, 2018 telephonic hearing, Meritor had not presented evidence to show the records were privileged. Notably, the magistrate did not make a finding that the records were not privileged, but instead concluded that the question whether the records could be used in the Mississippi Federal Court was left to the parties and the Federal District Judge presiding there. [3]

         ¶5 Mississippi Attorney General Jim Hood filed motions to intervene and to dissolve the TRO and an objection to Meritor's request for a permanent injunction August 29, 2018. [4] Intervenor argued that OU was required to release the records because the judge in the Mississippi federal case ruled they were not privileged. Meritor did not object to Mississippi's request to intervene.

         ¶6 OU answered Meritor's Petition September 13, 2018, and denied it had violated the OORA in stating its intent to release the records.

         ¶7 Hearing on Meritor's motion for a permanent injunction and on Intervenor's motion to dissolve the temporary restraining order was held September 26, 2018. The trial court entered its Order October 1, 2018, in which it found the records are public records, that Meritor created its own problem by having the testing performed at a public institution and thereby voluntarily causing the records to be part of the public domain, that the records are of significant interest to the State of Mississippi, and that Meritor had failed to show that the records were confidential and privileged. The court held that the records created by OU are not subject to the consulting expert or work product privileges, and that Meritor had failed to prove any proprietary interest in the records. The trial court therefore dissolved the temporary restraining order, denied Meritor's motion for permanent injunction, and directed that the records were subject to disclosure under OORA. On motion of Meritor, the trial court stayed its ruling pending appeal.

         ¶8 Meritor now appeals the denial of its request for a permanent injunction against disclosure of the records.

As an equitable matter, "[i]njunction is an extraordinary remedy and relief by this means should not be granted lightly."... We review the grant or denial of an injunction to determine whether the trial court abused its discretion in making its decision...." Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law...."

Autry v. Acosta, Inc., 2018 OK CIV APP 8, ¶24, 410 P.3d 1017 (emphasis supplied; citations omitted). The general rule in equitable actions is the appellate court may modify the judgment to render the judgment the trial court should have. Malnar v. Whitfield, 1985 OK 82, ¶5, 708 P.2d 1093. The basic facts alleged in Meritor's Petition are not disputed. The first impression question of law presented is whether the Act requires or allows disclosure of public records where those records were created for an undisclosed, retained expert witness hired by attorneys in preparation for litigation. We review questions of law de novo, in which we have "plenary independent and non-deferential authority to reexamine a trial court's legal rulings." Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶14, 859 P.2d 1081, 1084. Necessarily this rule includes questions of law on the application of OORA to undisputed facts. County Records, Inc. v. Armstrong, 2012 OK 60, ¶6, 299 P.3d 865.

         ¶9 The first provision of OORA sets out the policy goal of the Act:

As the Oklahoma Constitution recognizes and guarantees, all political power is inherent in the people. Thus, it is the public policy of the State of Oklahoma that the people are vested with the inherent right to know and be fully informed about their government.

51 O.S.2011 §24A.2 (emphasis supplied). The Act's expressed purpose "is to ensure and facilitate the public's right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power." [5] Id.

         ¶10 Meritor first argues that the CSIA test results are not "records" as defined by the Act and therefore are not subject to public disclosure. [6] For this argument, Meritor relies on Farrimond v. State ex rel. Fisher, 2000 OK 52, 8 P.3d 872. In Farrimond, the Oklahoma Insurance Commissioner was appointed as receiver for an insurance company and in that role took possession of the insurance company's records. The plaintiff in Farrimond made an OORA request seeking disclosure of the insurance company's records in possession of the Commissioner. The trial court ordered disclosure. On appeal, the Oklahoma Supreme Court found that although the company's records were in possession of a public official, they did not come into public possession "in connection with the transaction of public business, the expenditure of public funds or the administering of public property," as required by the Act. Id. at ¶12. The court relied on the Oklahoma Insurance Code provision that where a company has been placed under receivership, the receiver takes possession and title to the company's records by court order, so that "receivership property is in possession of the court, the receiver is the representative of the court, and the right of the receiver to receivership property is derived from the entity which has been placed in receivership." Id. at ¶15, citing Norman v. Trison Development Corp., 1992 OK 67, ¶7, 832 P.2d 6. The court further explained that in insurance receivership cases, "the Insurance Commissioner administers not public property but the property of the failed insurer and he does so under the direction of the district court." 2000 OK 52 at ¶20.

         ¶11 Meritor contends this case is analogous to Farrimond because here a private company submitted its own groundwater samples to be tested by a lab at OU. Plainly OU did more than simply receive and hold the samples. [7] The OU lab conducted specifically requested tests and reported the results to Meritor's consulting expert. Additionally, OU did not hold the materials pursuant to court order or a particular statute, as the Commissioner did in Farrimond. Because we find Meritor is entitled to relief based on exemptions, whether or not the documents at issue are records as defined by the Act is not decided.

         ¶12 Meritor next contends the records may not be disclosed because they are privileged work product. Meritor bears the burden of showing material it submitted to a public body is protected by a privilege:

The privacy interests of individuals are adequately protected in the specific exceptions to the Oklahoma Open Records Act or in the statutes which authorize, create or require the records. Except where specific state or federal statutes create a confidential privilege, persons who submit information to public bodies have no right to keep this information from public access nor reasonable expectation that this information will be kept from public access; provided, the person, agency or political subdivision shall at all times bear the burden of establishing such records are protected by such a confidential privilege.

51 O.S.2011 §24A.2 (emphasis supplied). [8] Meritor presented testimony from one of its attorneys, Timothy Coughlin, who testified that in preparation for the litigation in Mississippi, Meritor hired Laurie LaPat-Polasko, a scientist employed by Ramboll Corporation, as a non-testifying retained expert witness. [9] As such, Meritor was not required to disclose LaPat-Polasko or her opinions during discovery. Fed. Rules of Civ. Proc. Rule 26(b). Intervenor does not dispute this fact. Intervenor also appears to concede that a sub-contractor of LaPat-Polasko would not be discoverable on the same basis, by arguing that Meritor could have kept the test results secret simply by "being careful" to ask its retained expert to have the testing done in a private lab and that Meritor created its own problem by having the CSIA testing done in a public lab. This assertion amounts to an admission that the results would be privileged in the Mississippi litigation. Intervenor argued at the hearing and on appeal, without authority, that Meritor was required to present a written confidentiality agreement with OU to meet its burden of proving the records are privileged. Intervenor also convinced the trial court that the Mississippi Magistrate found that the records are not privileged. We have explained above that the Magistrate's Order found only that Meritor did not present sufficient evidence of privilege at that telephonic hearing. [10]

         ¶13 In the September 26 hearing, Intervenor presented testimony only from Sharon Hsieh, OU's open records officer. Meritor presented the testimony of Coughlin and Devin Rowe. Coughlin testified that his firm, as counsel for Meritor, and another law firm representing Textron in the Mississippi litigation, hired LaPat-Polasko and her assistant, Rowe, as consulting experts to do CSIA testing. Coughlin testified LaPat-Polasko and Rowe were never identified as testifying experts, although two other Ramboll employees were identified as testifying experts. Coughlin explained that Mr. Peeples, a non-retained testifying expert, was employed by T&M, Meritor's remediation consultant in Mississippi. Coughlin testified T&M drew the water samples from wells and those samples were used by LaPat-Polasko and Rowe for testing. Coughlin knew that LaPat-Polasko intended to have the testing done at OU. Coughlin testified OU billed LaPat-Polasko and after she had arranged for payment, Meritor paid LaPat-Polasko. Coughlin testified that the OU analysis results had been seen only by LaPat-Polasko, Rowe, and the lawyers. Coughlin also testified the results had not been seen by Mr. Peeples, its testifying expert. In response to the question why he knew no one else had seen the results, Coughlin explained:

We engaged Ms. LaPat(-Polasko) as a consulting expert, and we made that specifically clear. We also made specifically clear the issues of confidentiality and the proprietary nature of the engagement. And because of the work that we're asking to be done, we made sure ...

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