On Friday, the Pennsylvania Superior Court issued a non-precedential opinion that affirmed a trial court’s order denying objections filed by natural gas drilling company, Range Resources-Appalachia, LLC, to a subpoena issued to one of its engineering consultants, URS Corp. The case, Haney v. Range Resources-Appalachia, LLC, et al., No. 2012-3534, involves personal injury and property damage claims filed by a group of residents that live near Range’s Yeager natural gas drilling site in Washington County, Pennsylvania.  

Plaintiffs originally submitted a request for production of documents to Range, which sought the production of documents related to air monitoring tests performed at Range’s natural gas sites.  After Range objected to the request and stated they did not have any responsive documents, plaintiffs filed a notice of intent to serve a subpoena against URS, which plaintiffs learned had served as Range’s engineering consultant on several local drilling sites.  Range objected to the subpoena, arguing that URS was retained as an “expert consultant” in anticipation of litigation, and that therefore, many of the documents in URS’s possession were protected as expert work product under Pennsylvania Rule of Evidence 4003.5(a)(3).  As evidence that URS was retained as a litigation expert, Range produced a 2011 engagement letter from Range’s counsel to URS that specifically retained URS as a consultant for various resident complaints related to the Yeager drilling site and surrounding area. 

The trial court judge disagreed with Range’s assertion of privilege over the requested documents, overruled the objections and allowed plaintiffs to serve their subpoena on URS.  Range then filed an interlocutory appeal to the Superior Court to review the trial court’s decision, arguing that the documents were of such a confidential nature that interlocutory appeal was appropriate.

The Pennsylvania Superior Court agreed to hear the appeal, but also agreed with the trial court’s ruling that Range had not provided  “meaningful evidence” that URS was retained in anticipation of litigation.  The Superior Court held that “[e]ven if counsel for Range engaged URS in 2011 as an expert consultant in anticipation of litigation, Range admits that it also retained URS as a non-expert to ‘perform air monitoring at select natural gas sites’ and that the scope of [plaintiffs’] subpoena includes ‘non-privileged materials.’”  The Court also pointed to the fact that Range’s attorney had made statements in a local township meeting that Range would share certain air monitoring results that URS had performed once the information was collected. 

This case highlights the need to properly delineate the scope of an expert engineering consultant’s retention, particularly where that same consultant, or the consultant’s company, is used by a client for non-litigation, general business purposes.