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

Filing 529

ORDER & REASONS: It is ORDERED that Waste Management's Motion for Review (Rec. Doc. 480 ) is GRANTED, and the Magistrate Judge's Order of August 2, 2017 (Rec. Doc. 328 ) is REVERSED. It is FURTHER ORDERED that Waste Management may depo se Peter Butler, Sr., and seek document production from him as to Topics 1, 2, 3, and 5 listed in Waste Managements original subpoena. (See Rec. Doc. 480-3 at 10). The deposition shall be concluded by no later than June 30, 2020. Signed by Judge Carl Barbier. (gec)

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

CIVIL ACTION

VERSUS

NO: 11-2405

RIVER BIRCH, INC., ET AL.

SECTION: “J”(4)

ORDER & REASONS
Before the Court is plaintiff Waste Management of Louisiana, LLC’s (“Waste
Management”) Motion for Review of Magistrate Judge’s Order Granting, in Part,
Defendants’ Motion to Quash Subpoena to Peter Butler. (Rec. Doc. 480). Defendants,
River Birch, LLC f/k/a River Birch, Inc., Highway 90, LLC, Frederick R. Heebe, and
Albert J. Ward (collectively, “River Birch”), filed an opposition (Rec. Doc. 505), and
Waste Management replied (Rec. Doc. 514). The motion was submitted on the briefs.
After considering the parties’ arguments, the relevant record, and the applicable law,
the Court grants the motion and reverses the Magistrate Judge’s Order of August 2,
2017 (Rec. Doc. 328) for the reasons set forth below.
I.
This Order largely assumes the reader’s familiarity with this case. Peter
Butler, Sr., is an attorney who has counseled River Birch for over thirty years. (Rec.
Doc. 505 at 1). He is not counsel of record in this litigation, however. In June 2017,
Waste Management issued a subpoena to Butler seeking five categories of documents
and testimony covering Butler’s participation and knowledge regarding River Birch’s
alleged conspiracy to shutter Waste Management’s landfills. (Rec. Doc. 480-3). River

Birch moved to quash the subpoena in its entirety on the grounds that the
information was protected by attorney-client and work product privileges. (Rec. Doc.
283). The Magistrate Judge denied River Birch’s motion as to four of the five
categories. (Rec. Doc. 309). However, after receiving additional briefing, the
Magistrate Judge granted (Rec. Doc. 328) River Birch’s motion with respect to Topic
No. 2:
All communications between You [Butler] and the named Defendants,
or any person or entity associated with or acting on behalf of the named
Defendants, concerning Henry Mouton and any lobbying or related
activities regarding the Chef Menteur, Old Gentilly, or Two Rivers
landfills from August 29, 2005 to November 31, 2008.
(Rec. Doc. 480-3 at 10).
Waste Management timely objected to this ruling by filing a motion for review
with the District Judge then assigned to this case. (Rec. Doc. 347). While that motion
was pending, the District Judge granted River Birch’s motion for partial summary
judgment. (Rec. Doc. 372). That ruling, combined with an earlier decision to partially
grant River Birch’s Rule 12(b)(6) motion (Rec. Doc. 131), effectively mooted Waste
Management’s objection to the Magistrate Judge’s order. (Rec. Doc. 435). Waste
Management appealed the summary judgment and Rule 12(b)(6) rulings to the Fifth
Circuit. (Rec. Doc. 446). In 2019, the Circuit vacated the rulings and remanded the
case for further proceedings. Waste Mgmt. of La., L.L.C. v. River Birch, Inc., 920 F.3d
958, 963-64, 973 (5th Cir. 2019).1 Consequently, Waste Management’s objection to
the Magistrate Judge’s ruling regarding the Butler subpoena is no longer moot.

While the appeal was pending, the District Judge originally assigned to the case was elevated to the
Fifth Circuit. The case was re-allotted to the undersigned following remand.
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II.
A district judge may overturn a magistrate’s decision on a non-dispositive
pretrial matter when the decision is clearly erroneous or contrary to law. Fed. R. Civ.
P. 72(a). Waste Management argued before the Magistrate Judge that the
communications between River Birch and Butler fall within the crime-fraud
exception to the attorney-client and work product privileges. The Magistrate Judge
determined that the crime-fraud exception did not apply and that the
communications were privileged. Waste Management contends this decision was
clearly erroneous and contrary to law.
“Under the crime-fraud exception to the attorney-client privilege, the privilege
can be overcome where communication or work product is intended to further
continuing or future criminal or fraudulent activity.” In re Grand Jury Subpoena, 419
F.3d 329, 335 (5th Cir. 2005) (quotations and citation omitted). “In order to invoke
[the crime-fraud] exception, the party seeking to breach the walls of privilege must
make out a prima facie case.” Id. at 336 (quotations and citation omitted). This means
Waste Management ‘“must produce evidence such as will suffice until contradicted
and overcome by other evidence . . . [or, in other words,] a case which has proceeded
upon sufficient proof to that stage where it will support [a] finding if evidence to the
contrary is disregarded.’” In re Katrina Canal Breaches Consol. Litig., No 05-4182,
2008 WL 4401970 at *11 (E.D. La. Sept. 22, 2008) (quoting In re Grand Jury
Proceedings, 641 F.2d 199, 203 (5th Cir. 1981)) (alterations supplied by Katrina Canal
Breaches; emphasis omitted). “The burden of establishing a prima facie case of crime

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for this purpose in the civil discovery context is not great and is certainly less than
the standard that a district attorney or other prosecutor would use in pursuing
criminal charges.” Id. at *10. Waste Management need not “establish the essential
elements of a crime or fraud beyond a reasonable doubt, since the crime-fraud
exception does not require a completed crime or fraud but only that the client have
consulted the attorney in an effort to complete one.” Id. “After the party seeking
disclosure meets its prima facie showing that the client intended to further an
ongoing crime or fraud during the attorney-client relationship such that the crimefraud exception applies, the only attorney-client communications and work product
materials falling within the scope of the crime-fraud exception are those shown to
hold ‘some valid relationship’ to the prima facie violation such that they ‘reasonably
relate to the fraudulent [or criminal] activity.’” In re Grand Jury Subpoena, 419 F.3d
at 346 (italics omitted; citations omitted).
When the Magistrate Judge considered the parties’ arguments regarding the
crime-fraud exception, she did not have the benefit of the Fifth Circuit’s subsequent
decision in this case. That decision looms large here.
As mentioned, Waste Management seeks to depose Butler regarding
communications between him and River Birch (or others acting on River Birch’s
behalf) concerning Henry Mouton and any lobbying or related activities regarding the
Chef Menteur landfill from August 29, 2005 to November 31, 2008. Henry Mouton
was a commissioner for the Louisiana Department of Wildlife and Fisheries from
2003 to 2008. In 2011, Mouton pled guilty to a conspiracy to violate 18 U.S.C. §

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666(a)(1)(B), which prohibits a local official in a program that receives $10,000 in
federal funds from “accept[ing] or agree[ing] to accept, anything of value from any
person, intending to be influenced or rewarded in connection with any business,
transaction, or series of transactions of such organization, government, or agency
involving any thing of value of $5,000 or more.” As recounted by the Fifth Circuit:
[Mouton] admit[ted] that he received bribes for using his official position
to assist [River Birch] by influencing public officials to help [River Birch]
shutter landfill competitors. Relevant here, Mouton’s factual basis
supporting his guilty plea provides:
Shortly after Hurricane Katrina made landfall in August
of 2005, Co-conspirator “A” and other Co-conspirators
recognized the potential to obtain millions of dollars in
revenue for the collection and disposal of storm debris from
storm ravaged areas. . . . Co-conspirator “A” conspired with
Mouton to shutter the competition. The plan was to
eliminate the competition and increase the revenue of Coconspirator “A” by increasing the amount of storm debris
deposited in the landfills owned by Co-conspirator “A.”
Mouton confirmed at his deposition in this case that Coconspirator “A” was Defendant Heebe and that the Chef Menteur
landfill was one of the landfills that was targeted as part of the scheme
he had with Heebe. Moreover, as part of the campaign of [River
Birch] to shutter the Chef Menteur landfill, Mouton testified that
Heebe and [Defendant] Ward, or their attorneys, wrote or assisted
in drafting a letter for Mouton to send to the Louisiana
Department of Environmental Quality, as well as federal
agencies, urging the closure of the Chef Menteur landfill for
alleged environmental reasons. Mouton, presumably for the benefit
of [River Birch], also sent copies of the letter to the City of New Orleans.
. . . Defendants and Mouton knew that [Mayor C. Ray] Nagin was the
critical decision-maker who had authority to either extend or decline to
extend the temporary order allowing the Chef Menteur landfill to
continue operations.[2] A jury could therefore conclude that Mouton’s
communication of allegedly false environmental concerns about the
landfill to state and federal agencies was designed to have these
2

See also Order & Reasons of May 20, 2020 at 7-8, Rec. Doc. 523.
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government agencies influence Nagin to shut down the landfill. Because
Mouton’s action in this respect could be seen as part of the overall plan
to shutter the Chef Menteur landfill, evidence of [River Birch’s] conduct
in bribing Mouton to participate is intrinsic to this case.
Waste Mgmt. of La., L.L.C., 920 F.3d at 966-67 (footnote omitted) (emphasis added).
Consistent with the emphasized language in the Fifth Circuit’s opinion, Waste
Management presents evidence indicating that River Birch directed Butler to ghostwrite multiple letters attacking River Birch’s competitors’ landfills, including but not
limited to the Chef Menteur landfill. These letters were submitted by Mouton in his
own name and sought to capitalize on his role as a state Fish and Wildlife
Commissioner. These letters were sent to a variety of state and federal government
officials. As determined by the Fifth Circuit, “A jury could therefore conclude that
Mouton’s communication of allegedly false environmental concerns about the landfill
to state and federal agencies was designed to have these government agencies
influence Nagin to shut down the landfill.” Id. at 967.
River Birch argues that under McDonnell v. United States, 136 S. Ct. 2355
(2016), which was decided after Mouton was convicted, the crime-fraud exception is
not applicable because any payments River Birch made to Mouton could not result in
an “official act,” given that the Louisiana Department of Wildlife and Fisheries did
not control landfills. In other words, River Birch contends that even if it did pay
Mouton to secretly lobby on its behalf, and even if Butler helped further these efforts,
no crime was committed. However, McDonnell interpreted 18 U.S.C. § 201, which is
different from the statute to which Mouton pled. Unlike § 201, 18 U.S.C. §

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666(a)(1)(B) does not mention or require “official acts.”3 Instead, § 666(a)(1)(B)
prohibits a local official in a program that receives $10,000 in federal funds from
accepting a payment “in connection with any business, transaction, or series of
transactions of [the local official’s] organization, government, or agency.”
The conduct upon which Mouton’s plea is based is that River Birch paid
Mouton hundreds of thousands of dollars in exchange for his secret, unreported
advocacy on their behalf using the influence of his official state position. (See Factual
Basis of Mouton’s Guilty Plea, Rec. Doc. 480-15). The evidence presented supports
Waste Management’s claim that Mouton traded on his title and role as an allegedly
independent state official focused on conservation and environmental issues. Indeed,
all of the letters submitted with the instant motion immediately call the reader’s
attention to the fact that Mouton was then member of the state Wildlife and Fisheries
Commission. For example, on or around June 19, 2006, Mouton sent an eight-page
letter (Rec. Doc. 480-7), which appears to have been drafted by Butler at River Birch’s
behest (see Rec. Doc.480-9), to the District Commander of the U.S. Army Corps of
Engineers. At the top of the letter appears:
HENRY R. MOUTON
COMMISSIONER
LOUISIANA DEPT. of WILDLIFE AND FISHERIES

Section 201 further defines “official act” to mean “any decision or action on any question, matter,
cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be
brought before any public official, in such official’s official capacity, or in such official’s place of trust
or profit.” McDonnell, 236 S. Ct. at 2367 (quoting 18 U.S.C. § 201(a)(3)). This language was key to the
Supreme Court’s interpretation of § 201. See id. at 2371-72.
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The first line of the letter reads, “As a member of the Louisiana Department of
Wildlife and Fisheries Commission, I am writing to you in my individual capacity as
a citizen of the State of Louisiana and as a party who is committed to the
environmental health of the Bayou Savauge Wildlife Refuge . . . situated adjacent to
the recently opened . . . Chef Menteur Dump.” (Rec. Doc. 480-7).4 The record reflects
that this letter prompted a meeting eight days later between Mouton, the Army Corps
District Commander, the Regional Director of the U.S. Fish and Wildlife Service, the
Director of the Louisiana office of the U.S. Fish and Wildlife Service, as well as an
attorney and two engineers for the Corps. According to Mouton’s lengthy notes from
that meeting—which he emailed directly to defendant Heebe and attorney Butler the
next morning—the District Commander stated at the end of the meeting that “unless
there is something that he has NOT seen, he sees NO reason why he would NOT shut
down Chef [Menteur landfill] in the next week or so if not earlier.” (Rec. Doc. 480-8
at 3 (emphasis in original); see also Rec. Doc. 480-10). The Court finds that this
episode combined with the other evidence in the record establish a prima facie case
that River Birch paid Mouton in exchange for “any business” of Mouton’s public office
in violation of § 666(a)(1)(B), and that Butler aided and furthered this violation.

Other letters do not even bother to claim that Mouton was acting in his “individual capacity.” For
example, on November 4, 2005, Butler drafted a letter that Mouton sent to seventeen U.S. Senators,
including the Chairman of the Senate Committee on Environment and Public Works, that advocated
closing the Old Gentilly landfill. The letter begins, “I am writing this letter to you as a member of the
Louisiana Department of Wildlife & Fisheries. As a member of this Department, I believe I have some
responsibility as a caretaker of the environment in Louisiana.” (Rec. Doc. 480-13).
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Additionally, McDonnell noted that “if a public official uses his official position
to provide advice to another official, knowing or intending that such advice will form
the basis for an ‘official act’ by another official, that too can qualify as a decision or
action for purposes of § 201(a)(3).” Id. at 2370. Therefore, even if McDonnell’s
interpretation does apply to 18 U.S.C. § 666(a)(1)(B), the evidence in the record would
still support Mouton’s conviction. See also Waste Mgmt. of La., L.L.C., 920 F.3d at
967 (“A jury could therefore conclude that Mouton’s communication of allegedly false
environmental concerns about the landfill to state and federal agencies was designed
to have these government agencies influence Nagin to shut down the landfill.”).
In analyzing the crime-fraud exception, the central issue is whether Waste
Management raised a prima facie case that River Birch used Butler’s advice in
furtherance of an ongoing or future crime or fraud. Waste Management is not
required to prove beyond a reasonable doubt that a crime was committed, and the
standard is less in a civil case than it would be in a criminal prosecution. Considering
the evidence presented, particularly in light of the Fifth Circuit’s opinion (which,
again, was not rendered until after the Magistrate Judge ruled), the Court is left with
a definite and firm conviction that a mistake was made and Waste Management’s
objections should be sustained.
Finally, the Court acknowledges that it previously ruled that no further
discovery would be permitted in this case. (Rec. Doc. 462). However, the Court finds
that the present circumstances warrant a deviation from this decree. Waste

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Management may take Butler’s deposition, provided that the deposition is concluded
by no later than June 30, 2020.
III.
Accordingly,
IT IS ORDERED that Waste Management’s Motion for Review (Rec. Doc. 480)
is GRANTED, and the Magistrate Judge’s Order of August 2, 2017 (Rec. Doc. 328) is
REVERSED.
IT IS FURTHER ORDERED that Waste Management may depose Peter
Butler, Sr., and seek document production from him as to Topics 1, 2, 3, and 5 listed
in Waste Management’s original subpoena.5 (See Rec. Doc. 480-3 at 10). The
deposition shall be concluded by no later than June 30, 2020.
New Orleans, Louisiana, this 4th day of June, 2020.

__________________________________
United States District Judge

Topic No. 4 of Waste Management’s subpoena is no longer relevant following the parties’ partial
settlement in this case.
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