Waste Management of Louisiana, L.L.C. v. River Birch, Inc. et al

Filing 309

ORDER: IT IS ORDERED that the 283 Motion to Quash Subpoena to Attorney Peter J. Bulter, Sr., or Alternatively for a Protective Order is DENIED IN PART AND TAKEN UNDER SUBMISSION IN PART as stated herein. IT IS FURTHER ORDERED that the Plaintiff ma y submit a further memorandum in opposition no later than Friday July 21, 2017. IT IS FURTHER ORDERED that the Defendant may submit a further memorandum in support no later than Monday January 24, 2017. Signed by Magistrate Judge Karen Wells Roby on 7/19/2017. (tm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WASTE MANAGEMENT OF LOUISIANA,
LLC

CIVIL ACTION

VERSUS

NO:

RIVER BIRCH, INC. ET AL

SECTION: “N” (4)

11-2405

ORDER
Before the Court is a Motion to Quash Subpoena to Attorney Peter J. Butler, Sr. or
Alternatively for a Protective Order (R. Doc. 283) filed by Defendants River Birch LLC,
Highway 90, LLC, Frederick Heebe, and Albert Ward, Jr. seeking an order quashing the subpoena
issued by the Plaintiff to Peter Butler, Sr. The motion is opposed. R. Doc. 296. The motion was
submitted on July 19, 2017 and heard with argument that same day.
I.

Background
This action was filed in the District Court on September 23, 2011. R. Doc. 1. Waste

Management of Louisiana, LLC (“Plaintiff”) alleges that the Defendants have engaged in a longrunning conspiracy to limit and exclude competition for landfill disposal services in and around
New Orleans, Louisiana. R. Doc. 140, p. 1. The Defendants in this action are: River Birch, Inc.,
the owner and operator of River Birch landfill; Highway 90 LLC, who owns Highway 90 landfill;
Frederick Heebe, the owner of Shadow Lake Management, Co., which is the parent corporation of
River Birch, Inc.; and Albert Ward, who is the father-in-law of Heebe, and former President of
River Birch, Inc. and Manager of Highway 90 LLC (collectively “Defendants”). In particular, the
Plaintiff states that it suffered direct injury as a result of the Defendants actions in at least two
instances: the premature closure of the Chef Menteur landfill in 2006 as part of a scheme to transfer
more Hurricane Katrina clean-up debris to River Birch’s landfill; and the efforts to prematurely
oust the Plaintiff as operator of the Jefferson Parish landfill as part of a scheme to transfer the

Parish’s municipal solid waste to River Birch landfill under an exclusive 25-year contract. Id. at
p. 2. As such, the Plaintiff has alleged two counts of violations under Federal Racketeer Influenced
and Corrupt Organizations (“RICO”) Sections 1962(c) and Section 1962(d). Id. at p. 39-42.
At this time, the Defendants have filed a motion to quash or alternatively for a protective
order in relation to the subpoena issued by the Plaintiff to Peter Butler, Sr. (“Butler”). Butler
provided legal counsel to the Defendants for more than thirty years. R. Doc. 283, p. 1. As such,
the Defendants state that the subpoena seeks privileged information. R. Doc. 283-1, p. 3-4.
Moreover, to the extent that the Plaintiff seek non-privileged information, the Defendants argue
that the information is cumulative or duplicative of prior discovery. Id. at p. 4. Finally, the
Defendants argue that Waste Management should pursue the discovery of any non-privileged
information from their attorney from some means other than a deposition, citing by analogy the
factors used in determining whether to depose in-house counsel. Id. at p. 5.
In reply, the Plaintiff argue that any privileged communication between Butler or the
Defendants in connection with the alleged scheme to target rival landfills would fall under the
“crime-fraud” exception. R. Doc. 296, p. 5. The Plaintiff also challenges that the information
would not be duplicative and that the citation to the Shelton factors concerning the deposition of
in-house counsel are inapposite.
II.

Standard of Review
Federal Rule of Civil Procedure 45(d)(3) governs the quashing or modifying of subpoenas.

The Court must quash or modify a subpoena that “(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii)
requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.” Fed. R. Civ. P. 45(d)(3)(A)(i)-(iv). The Court may also

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modify or quash a subpoena that requires the disclosure of a trade secret or an unretained expert’s
opinion that does not describe specific occurrences in dispute and results from that expert’s study
that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B).
Subpoenas under Rule 45 may be served upon both party and non-parties. Petit v. Heebe,
No. 15-3084, 2016 WL 1089351, at *2 (E.D. La. Mar. 21, 2016). However, in order to challenge
the subpoena, the movant must: be in possession or control of the requested material; be the person
to whom the subpoena is issued; or have a personal right or privilege in the subject matter of the
subpoena or a sufficient interest in it. See, Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979);
see also Johnson v. Mixon, No. 13-2629, 2014 WL 1764750, at *4 (E.D. La. May, 2, 2014).
“Both Rules 45 and 26 authorize the court to modify a subpoena duces tecum when its
scope exceeds the boundaries of permissible discovery or otherwise violates the parameters of
Rule 45.” Hahn v. Hunt, No. 15-2867, 2016 WL 1587405, at *2 (E.D. La. Apr. 20, 2016)
(Wilkinson, C.M.J.). Federal Rule of Civil Procedure (“Rule”) 26(b)(1) provides that “[p]arties
may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or
defense. . . . .” Rule 26(b)(1) specifies that “[i]nformation within the scope of discovery need not
be admissible in evidence to be discovered.” Rule 26(b)(1) also specifies that discovery must be
“proportional to the needs of the case, considering the important of the issues at stake in the action,
the amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or
expense of the proposed discovery outweighs its likely benefit.” Id.
Under Rule 26(b)(2)(C), discovery may be limited if: (1) the discovery sought is
unreasonably cumulative or duplicative, or is obtainable from another, more convenient, less
burdensome, or less expensive source; (2) the party seeking discovery has had ample opportunity

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to obtain the discovery sought; or (3) the proposed discovery is outside of the scope permitted
under Rule 26(b)(1).
III.

Analysis
At this time, the Defendants have filed a motion to quash or alternatively for a protective

order in relation to the subpoena issued by the Plaintiff to their attorney Butler. R. Doc. 283. The
Defendants argue that the subpoena seeks potentially privileged information as well as information
that would be duplicative or cumulative of other discovery. The Defendants also argue that any
non-privileged information should be sought from some other means citing the Shelton factors. In
turn, the Plaintiffs argue that the information sought in the deposition of Butler is either not
privileged or subject to the crime-fraud exception.
Under the attorney-client privilege, “[t]he party asserting privilege bears the burden to
show: (1) a confidential communication; (2) to a lawyer or subordinate; (3) for the primary purpose
of securing a legal opinion, legal services, or assistance in the legal proceeding” Vicknair v.
Louisiana Dept. of Pub. Safety & Corr., 555 F. App’x 325, 333 (5th Cir. 2014) (internal quotation
and citation omitted). During oral argument, the Court determined that Deposition Topic Nos. 1,
3, 4, and 5 should not involve privileged information as those topics deal with communications
between Butler and other third-parties. And, to this extent, the Court denies the motion to quash.
However, the Court finds that Topic No. 2, which seeks information related to “[a]ll
communications between [Butler] and named Defendants, or any person or entity associated with
or acting on behalf of the named Defendants,” may involve discussion of privilege information.
While the Court heard argument concerning the application of the crime-fraud exception to the
attorney-client privilege, the Court determined that it required additional briefing on this matter,
particularly given that Mouton’s recently completed deposition may aid the Court’s consideration.

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IV.

Conclusion
Accordingly,
IT IS ORDERED Defendants’ Motion to Quash Subpoena to Attorney Peter J. Bulter,

Sr., or Alternatively for a Protective Order (R. Doc. 283) is DENIED IN PART AND TAKEN
UNDER SUBMISSION IN PART.
IT IS FURTHER ORDERED that the Defendants’ motion is DENIED as to Topic Nos.
1, 3, 4 and 5.
IT IS FURTHER ORDERED that the Defendants’ motion is TAKEN UNDER
SUBMISSION as to Topic No. 2.
IT IS FURTHER ORDERED that the Plaintiff may submit a further memorandum in
opposition no later than Friday July 21, 2017.
IT IS FURTHER ORDERED that the Defendant may submit a further memorandum in
support no later than Monday January 24, 2017.

New Orleans, Louisiana, this 19th day of July 2017.

KAREN WELLS ROBY
CHIEF UNITED STATES MAGISTRATE JUDGE

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