Chevron Midstream Pipelines LLC et al v. Settoon Towing LLC, et al

Filing 309

ORDER AND REASONS granting in part and denying in part 253 Motion to Compel. Signed by Magistrate Judge Michael North on 12/31/2014. (Reference: Both Cases)(lag)

CHEVRON MIDSTREAM
PIPELINES LLC, ET AL.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

CIVIL ACTION

VERSUS

NUMBER: 13-2809
c/w 13-3197

SETTOON TOWING LLC, ET AL.

SECTION: “A”(5)
ORDER AND REASONS

Before the Court is the Motion to Compel Production of Root Cause Analysis filed by

Defendant/Petitioner in Limitation, Settoon Towing LLC (“Settoon”) (Rec. doc. 253). The

Motion is opposed by Plaintiffs/Claimants in Limitation, Chevron Midstream Pipelines, LLC;
Chevron Pipe Line Company; and Chevron U.S.A. (“Chevron”) (Rec. doc. 258). Settoon also
filed a Reply Memorandum. (Rec. doc. 267).

The Court heard oral argument on the motion November 12, 2014. (Rec. doc. 270).

Following that hearing, the Court ordered Chevron to produce for in camera inspection
certain documents subject of the Motion that were identified on Settoon’s privilege log, 1
following which the Court would reconvene the November 12 hearing. (Id.). The Court has

conducted a thorough analysis of the documents submitted for in camera review. Having
considered the parties pleadings and supporting proof, the documents at issue, the relevant

legal authority and the parties’ oral arguments, the Court finds that additional oral
argument is unnecessary and rules as follows:

Following the hearing, counsel for Chevron submitted the 144 “challenged” documents, along with a revised
privilege log listing those documents, for in camera review. The Court had both Chevron’s letter and the
attached privilege log filed into the record, where they are identified as record documents 306 and 307.
1

I.

BACKGROUND

This consolidated litigation arises from a March 12, 2013 incident in which the M/V

SHANON SETTOON, a vessel owned and operated by Settoon, allided with Chevron’s VP-01

pipeline in Bayou Perot, Louisiana, resulting in a release of product that caused an
explosion and fire (Rec. doc. 1, 13-CV-2809). That explosion and fire allegedly caused a

number of personal injuries, including the death of a crewmember, and extensive property
damage. (Id.).

Chevron filed a Complaint against Settoon for property damage to the pipeline (id.),

which was followed in turn by Settoon’s filing of a Limitation of Liability action seeking
exoneration and/or limitation of liability for the allision.

(Rec. doc. 1, 13-CV-3197).

Numerous other parties, including personal injury claimants, have joined this litigation in
various capacities. The two matters were consolidated by the District Judge and discovery,
written and otherwise, has proceeded accordingly.

Both Chevron and Settoon

acknowledge in their respective pleadings related to this Motion that the parties agreed

prior to initiation of written discovery that they would make every effort not to engage in
unnecessarily duplicative discovery. As such, the present Motion focuses on Chevron’s

response to a particular Request for Production propounded, not by Settoon, but by
claimant, Vernon Whittington.

Owing to their pre-discovery agreement, both parties

concur that the adequacy of Chevron’s response to Whittington’s request is properly before

this Court via Settoon’s Motion.
II.

THE PARTIES’ CONTENTIONS

The present Motion seeks production of a “Root Cause Analysis” (“RCA”) and related

documents created by Chevron in the days and weeks following the subject incident.
2

Resisting production of these materials, Chevron claims the RCA was “legally chartered,”

and therefore it and the documents related to it are protected by the attorney-client and

work-product privileges. (See generally Rec. doc. 258).

In support of its position, Chevron explains that, “in the immediate aftermath of the

incident, the likelihood of litigation was apparent” to its in-house counsel, Joel Youngblood
(“Youngblood”). (Rec. doc. 258 at 2; Declaration of Joel Youngblood, Rec. doc. 258-1).

According to Youngblood, he thereafter appointed an “RCA Team,” consisting of six

Chevron employees and two in-house lawyers, including himself, to “investigate and gather
information necessary to provide legal advice to Chevron concerning the Incident,

including [his] evaluation of Chevron’s legal rights, claims, and defenses related to
anticipated litigation and administrative proceedings.” (Rec. doc. 258-1 at 2).

To effectuate the appointment of this “RCA Team” and to maintain the

confidentiality of its work and work product, Youngblood prepared and signed a “Root

Cause Investigation Legal Charter,” a copy of which Chevron attached to its Opposition

Memorandum. (Rec. doc. 258-1 at 5-6). That “Legal Charter” instructed the members of

the RCA Team to treat and mark all documents associated with their work as “highly
confidential.” (Id.). Youngblood declares that, upon receipt of the RCA Team’s work

product and source materials, he kept those materials “in strictest confidence as attorney-

client information within [Chevron’s] Law Department.” (Rec. doc. 258-1 at 3).

On the basis of the Legal Charter and Youngblood’s Declaration describing its

genesis and his handling of the RCA Team’s work product upon the completion of its work,

Chevron seeks to protect the RCA and all documentation related to its creation under both
3

the attorney-client and work product privileges.
Youngblood, claims the following:

Importantly, Chevron, through

Within Chevron, legally chartered root cause investigations are
not routine. While root cause procedures are utilized by
Chevron’s Health, Environmental, and Safety (HES) group to
analyze incidents and near miss events, often in conjunction
with outside contractors, in order to identify improvements to
procedures or equipment, HES incident reviews are separate
and distinct from root cause analyses conducted at the request
of the Law Department pursuant to a Legal Charter.

(Rec. doc. 258-1 at 4).

Chevron relies heavily on Bross v. Chevron U.S.A., Incorporated, 2 a case involving a

similarly “legally chartered” RCA, for the proposition that courts have found that the
attorney-client and work-product privileges both apply to such legally chartered root cause
investigations.

Settoon takes issue with Chevron’s claims of privilege over these documents.

Settoon focuses its arguments on Chevron’s claims of work-product protection, as the vast
majority of the disputed documents are withheld solely on the basis of this claimed
privilege. 3 Generally, citing Fifth Circuit precedent, Settoon insists that the “primary

motivating factor” behind the creation of the RCA and its related documents was “to

increase safety and prevent recurrence of incidents,” as opposed to the anticipation of

litigation, as claimed by Chevron and Youngblood. (Rec. doc. 253-1 at 11 (citing United

States v. Davis, 636 F.2d 1028, 1039 (5th Cir. 1981)). Settoon points to testimony and

statements of key Chevron employees that it says establish that root cause analyses are

No. 06-CV-1523, 2009 WL 854446 at *4 (W.D. La. Mar. 25, 2009).
Of 144 documents listed on Chevron’s privilege log, only 28 are subject to a claim of attorney-client privilege
(and all of those are also subject to work-product claims). (Rec. doc. 307).

2
3

4

matters of routine at Chevron following accidents and near-miss incidents and, as such,
cannot fall under the protection of the work-product privilege.

As to Chevron’s claims of attorney-client privilege, Settoon complains that most, if

not all, of the documents subject to this claimed privilege were not sent, received or created

by a lawyer; that the information therein was not intended to be kept nor was it actually

kept confidential as required by law; and that the subject communications were not made
for the purpose of obtaining or providing legal advice because they relate to an undertaking
(the root cause investigation) that is routine and is conducted as a matter of course after an
accident. (See generally Rec. doc. 267 at 3-4).
III.

LEGAL ANALYSIS

The federal common law of privilege governs these maritime-law claims. Fed. R.

Evid. 501. The burden of demonstrating the applicability of both the attorney-client

privilege and the work-product privilege rests on the party who invokes them. Hodges,

Grant & Kaufmann v. United States, 768 F.2d 719, 721 (5th Cir. 1985). Here, it is Chevron’s
burden to demonstrate that either the attorney-client privilege or work-product immunity

is applicable to the various documents it seeks to protect from disclosure.
A.

The Attorney-Client Privilege

The attorney-client privilege protects from disclosure confidential communications

made to obtain a lawyer's professional advice and assistance. Bross, 2009 WL 854446 at

*4; S.E.C. v. Brady, 238 F.R.D. 429, 438 (N.D. Tex. 2006). The purpose of the attorney-client

privilege is well-established: to encourage candid communications between client and

counsel. Upjohn Co. v. United States, 449 U.S. 383, 390-91, 101 S.Ct. 677, 683 (1981).
5

Applicability of the privilege “is a question of fact, to be determined in the light of the
purpose of the privilege and guided by judicial precedents.” Hodges, 768 F.2d at 721.

A party invoking the attorney-client privilege must establish: (1) that there was a

communication between client and counsel; (2) the communication was intended to be
confidential; (3) the communication was, in fact, kept confidential; and (4) the

communication was made for the purpose of obtaining or providing legal advice. U.S. v.
Construction Products Research, Inc., 73 F.3d 464, 473–74 (2nd Cir.), cert. denied, 519 U.S.
927, 117 S.Ct. 294 (1996).

Questions often arise as to whether the scope of the privilege should differ as

between private and corporate clients. While the Supreme Court in Upjohn recognized the

risk that an expansive application of the attorney-client privilege to corporations could
impose severe burdens on discovery and create a broad “zone of silence” over corporate

affairs, that same Court concluded that effective representation by counsel “depends upon
the lawyer’s being fully informed by the client .” Upjohn, 449 U.S. at 389, 101 S.Ct. at 682;

see also Admiral Ins. Co. v. U.S. Dist. Court for Dist. of Arizona, 881 F.2d 1486, 1492 (9th Cir.

1989). The Fifth Circuit has explained in this context that “what is vital to the privilege is
that the communication be made in confidence for the purpose of obtaining legal advice

from the lawyer.” U.S. v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982)(internal quotations
and citation omitted).

The Fifth Circuit in El Paso noted the holding of Upjohn, that “[b]ecause the purpose

of the attorney-client privilege is to promote the flow of information to the attorney to
enable him to give informed legal advice, communications from lower echelon employees

were within the privilege as long as the communications were made to the attorney to
6

assist him in giving legal advice to the client corporation.” Id. at 538 n. 8 (discussing
Upjohn, 449 U.S. 388-96, 101 S.Ct. at 682–86).

Notable in the present matter, “[t]he attorney-client privilege protects two related,

but different, communications: (1) confidential communications made by a client to his
lawyer for the purpose of obtaining legal advice; and (2) any communication from an
attorney to his client when made in the course of giving legal advice, whether or not that
advice is based on privileged communications from the client.” Brady, 238 F.R.D. at 438-39
(citing U.S. v. Mobil Corp., 149 F.R.D. 533, 536 (N.D. Tex. 1993)).

Turning to the merits of Chevron’s claim and the question of whether it has met its

burden as to any of the documents withheld as attorney-client communications, the Court

first notes, as referenced earlier, that relatively few of the documents withheld by Chevron

are said to be protected by this privilege; in fact Chevron devotes very little in the way of
argument or factual support to bolster its claim that the 28 documents listed as attorney-

client communications are, in fact, protected. The two pages of brief devoted to this

argument consist of the restatement of portions of Youngblood’s declaration and selective
quotations from the Bross and Upjohn decisions, summed up by the conclusory observation
that all of the “report and materials generated by Chevron’s RCA Team for the benefit of

Chevron’s in-house counsel constitute privileged, non-discoverable communications

between client and counsel for the purpose of obtaining legal advice.” (Rec. doc. 258 at 46).

While Chevron seems to posit in the above-quoted statement that all of the withheld

documents are subject to that privilege, it specifically invoked that privilege as to only a
fraction of them. A litigant “may not withdraw behind the shield of the attorney-client
7

privilege” unless it “particularize[s] its assertion of the privilege and prove[s] its case with

respect to [each] specific document.” El Paso, 682 F.2d at 541. Blanket assertions of
privilege “disable the court and the adversary party from testing the merits of the claim of
privilege” and are therefore not sufficient to meet the relevant burden proof.

Id.

Accordingly, with the limited exception discussed below, the Court considers only those
specific documents as to which the attorney-client privilege was claimed.
The

documents

listed

in

the

Chevron

privilege

log

as

attorney-client

communications are numbers 4, 15, 16, 19-25, 27, 28, 31, 40-47, 49, 57, 79, 94, 97, 140, and
141. The Court has reviewed each of these documents in camera and finds that documents

15, 19-25, 27, 28, and 57 were transmitted to or from counsel for the purpose of

rendering or obtaining legal advice and that Chevron has satisfied its burden of proving
they are subject to the attorney-client privilege. These documents are protected and shall
not be produced.

The Court further finds that documents 4, 16, 140, and 141 contain both privileged

and non-privileged information and that these documents shall be produced with the

privileged information redacted as per the Court’s instructions below. In addition and for
the same reasons, the Court will order redactions made to the following documents, over

which claims of attorney-client privilege were not expressly made on the privilege log:
documents 1, 5, 18, 26, 34, 63, 75, 80, and 83. While the privilege was not properly
claimed on these documents in the privilege log, El Paso, 682 F.2d at 541, the Court finds

that this omission should be excused, as a review of the documents reveals they are largely
identical to documents over which the privilege was properly invoked. The Court therefore

finds it appropriate to “relax” the rule enunciated in El Paso in this instance and allow for
8

redaction of those documents. United States v. Davis, 636 F.2d 1028, 1044 n. 20 (5th Cir.

1981). 4

As to the remaining documents over which the attorney-client privilege has been

claimed, Chevron has failed to carry its burden of proving they are subject to the privilege.

The bare assertions of Chevron and its in-house counsel, in brief and on the privilege log

itself, when viewed against the actual content of the documents themselves, are simply

insufficient to establish that these documents are attorney-client communications entitled

to protection.

The subject documents are not privileged on their face and there is insufficient

information provided by Chevron as to each document for the Court to determine whether

they are, in fact, privileged. Many of these documents indicate that they were sent to nonlawyers in the company and, while Youngblood stated in his declaration that he kept
information related to the RCA investigation in the “strictest” of confidence, he did not (and

likely cannot) say the same thing about the various non-lawyers who received the subject
documents. Chevron has not satisfied its burden as to its claims of attorney-client privilege
over these documents.

While the Court does not find these documents subject to the attorney-client

privilege, it does not order them produced on that basis alone, as each is also listed in
Chevron’s privilege log as subject to the work-product privilege. Accordingly, the Court
4 As to documents 1, 4, 5, 16, 18, 26, 34, 63, 75, 80, and 83, the same information should be redacted by
counsel for Chevron: an email contained in each document from Lloyd Escamilla to Doug McCormick that
copies Joel Youngblood. No other information in those documents is to be redacted. As for document 140,
which begins with an email from Denise Boihem to Lloyd Escamilla, dated March 19, 2013, the second full
paragraph in that email is to be redacted. The same information is to be redacted on document 141, along
with the second full paragraph in Mr. Escamilla’s reply email to Ms. Boihem, dated March 19, 2013.

9

must determine whether they and scores of additional documents withheld as work
product are to be afforded protection from disclosure under that privilege.
B.

The Work-Product Privilege

Rule 26(b)(3) of the Federal Rules of Civil Procedure governs the disclosure of

documents prepared in anticipation of litigation and provides:

Ordinarily, a party may not discover documents and tangible
things that are prepared in anticipation of litigation or for trial
by or for another party or its representative (including the
other party's attorney, consultant, surety, indemnitor, insurer,
or agent). But, subject to Rule 26(b)(4), those materials may be
discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1);
and
(ii) the party shows that it has substantial need for the
materials to prepare its case and cannot, without undue
hardship, obtain their substantial equivalent by other means.

Fed. R. Civ. Proc. 26(b)(3).

As with the attorney-client privilege, the burden of showing that documents were

prepared in anticipation of litigation, and therefore, constitute work product, falls on the
party seeking to protect the documents from discovery. St. James Stevedoring Co., Inc. v.
Femco Machine Co., 173 F.R.D. 431, 432 (E.D. La. 1997).

The work-product doctrine shields from discovery the materials prepared by or for

an attorney in preparation for litigation. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385

(1947); Blockbuster Entertainment Corp. v. McComb Video, Inc., 145 F.R.D. 402, 403 (M.D. La.
1992). It protects two categories of materials: ordinary work-product and opinion work

product. Snowden v. Connaught Lab., Inc., 137 F.R.D. 325, 330–32 (D. Kan. 1991); Bross,
2009 WL 854446 at *14-15; see generally Upjohn, 449 U.S. 383, 101 S.Ct. 677.
10

It has been widely cautioned, however, that the work-product doctrine “is not an

umbrella that shades all materials prepared by a lawyer, or agent of the client.” El Paso,
682 F.2d at 542; see also Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-CV-3759, 2000

WL 1145825 at *2 (E.D. La. Aug. 11, 2000). It focuses only on materials assembled and
brought into being in anticipation of litigation. Piatkowski, 2000 WL 1145825 at *2.

Excluded from the work-product doctrine are materials assembled in the ordinary course

of business. El Paso, 682 F.2d at 542. Work product protection also does not extend to the
underlying facts relevant to the litigation. See generally Upjohn, 449 U.S. at 395–96, 101

S.Ct. at 685-86.

In determining whether a document was “brought into being” in anticipation of

litigation, the primary focus is on the reason or purpose for creating the document. Beal v.
Treasure Chest Casino, No. 98–CV-0786, 1999 WL 461970 at *3 (E.D. La. July 1, 1999). The

Fifth Circuit has described the standard for determining whether a document has been
prepared in anticipation of litigation as follows:

It is admittedly difficult to reduce to a neat general formula the
relationship between preparation of a document and possible
litigation necessary to trigger the protection of the work
product doctrine. We conclude that litigation need not
necessarily be imminent, as some courts have suggested, as
long as the primary motivating purpose behind the creation of
the document was to aid in possible future litigation.

United States v. Davis, 636 F.2d 1028, 1039 (5th
Cir. Unit A), cert. denied, 454 U.S. 862, 102 S.Ct.
320 (1981)(citations omitted)(emphasis added);
accord In re Kaiser Alum. & Chem. Co., 214 F.3d
586, 593 (5th Cir. 2000), cert. denied, 532 U.S.
919, 121 S.Ct. 1354 (2001).

Factors that courts rely on to determine the primary motivation for the creation of a

document include the retention of counsel and counsel’s involvement in the generation of
11

the document and whether it was a routine practice to prepare that type of document
versus whether the document was instead prepared in response to a particular

circumstance. See Piatkowski, 2000 WL 1145825 at *2; Electronic Data Systems Corp. v.
Steingraber, No. 02-CV-0225, 2003 WL 21653414 (E.D. Tex. July 9, 2003). However, the
mere fact that a defendant anticipates litigation resulting from an incident does not

automatically insulate investigative reports from discovery as work-product. Carroll v.
Praxair, Inc., No. 05-CV-0307, 2006 WL 1793656 (W.D. La. Jun 28, 2006), see also Janicker v.

George Washington Univ., 94 F.R.D. 648, 650 (D.D.C.1982) (“The fact that a defendant

anticipates the contingency of litigation resulting from an accident or an event does not
automatically qualify an ‘in house’ report as work product.”). “If the document would have

been created regardless of whether litigation was also expected to ensue, the document is

deemed to be created in the ordinary course of business and not in anticipation of
litigation” Piatkowski, 2000 WL 1145825 at *2. 5

The mere contingency that litigation may result is not
determinative. If in connection with an accident or an event, a
business entity in the ordinary course of business conducts an
investigation for its own purposes, the resulting investigative
report is produceable in civil pre-trial discovery.

5

In this vein, Wright and Miller provides:
Prudent parties anticipate litigation, and begin preparation prior to the
time suit is formally commenced. Thus the test should be whether, in light
of the nature of the document and the factual situation in the particular
case, the document can fairly be said to have been prepared or obtained
because of the prospect of litigation. But the converse of this is that even
though litigation is already in prospect, there is no work-product immunity
for documents prepared in the regular course of business rather than for
purposes of the litigation.
Wright & Miller, Fed. Pract. & Proc. § 2024
(1994)(footnotes omitted).

12

As one court has observed:

Carroll, 2006 WL 1793656 at *2 (citing Binks
Manufacturing Co. v. National Presto Industries,
Inc., 709 F.2d 1109, 1119 (7th Cir. 1983)).

Following any industrial accident, it can be expected that
designated personnel will conduct investigations, not only out
of a concern for future litigation, but also to prevent
reoccurrences, to improve safety and efficiency in the facility,
and to respond to regulatory obligations. Determining the
driving force behind the preparation of each requested
document is therefore required in resolving a work product
immunity question.

National Union Fire Ins. Co. of Pittsburgh, Pa. v.
Murray Sheet Metal Co., Inc., 967 F.2d 980, 984
(4th Cir. 1992).

The Court agrees that the instant case presents just such circumstances as described

by the National Union Court and has therefore undertaken to determine the “driving force”

behind the Chevron RCA investigation and related documents by reviewing each of the

documents in camera. For the reasons set forth below, the Court finds that Chevron has
failed to establish that the “primary motivating factor” in the creation of the RCA and

related documents was, in fact, to aid in possible future litigation and will order those
documents to be produced.

Chevron relies almost entirely upon the declaration of Mr. Youngblood and the

“Legal Charter” created by him in seeking to have these documents declared work product.

Youngblood’s declaration does establish that, “in the immediate aftermath” of the subject

incident, Chevron, through Youngblood, anticipated the possibility of litigation and became
involved in the investigation of the incident.

In response to this declaration and Chevron’s argument that all of the materials

related to the investigation are privileged, Settoon counters that testimony and other
13

evidence proves that it was Chevron’s policy to perform an RCA after an incident, whether
initiated by the HES function or by “Legal Charter,” and that there is no evidence to

differentiate between what would be a routinely conducted investigation and one
conducted under a “Legal Charter.”

Specifically, Settoon points to the testimony of Denise Boihem, a Chevron engineer

who supervised the repair of the VP-01 pipeline, who agreed in her deposition that the

“primary purpose of a root cause analysis” is to “prevent a similar accident from happening
again in the future.” (Rec. doc. 253-1 at 10-11 (citing Exhibit 9, Deposition of Denise
Boihem, p. 25:13-24)). Additionally, Settoon stresses that Boihem testified that it is “part of
the Chevron ordinary course of business to conduct a root cause analysis” after an incident:
Q: Okay. What about if there is a situation where third party
contractors are not involved and a Chevron pipeline is struck
by a random vessel and Chevron Pipe Line wants to figure out
what happened? Isn’t it part of the Chevron ordinary course of
business to conduct a root cause analysis itself?
…
A: It’s our culture.

Q. Thank you. And when you say it is part of the Chevron
culture to conduct a root cause analysis, the purpose of that
root cause analysis is to hopefully figure out what happened
and prevent it from happening again in the future, correct?
A: Yes.

(Rec. doc. 253-4 at 32-33).

Settoon argues that this testimony is consistent with the clear language of Chevron’s

HES Safety Handbook, a copy of which was produced in the litigation by Chevron. (Rec.
doc. 253-4 at 61). That handbook provides in part:

• Promptly investigate and analyze the reported events with
your team to determine the root cause, and formulate
14

immediate corrective and preventive measures. Depending on
the nature of the incident, assistance from other departments
may be warranted.
• Data collection and investigation will begin within 24 hours.

(Id.)(emphasis supplied).

Finally, Settoon directs the Court’s attention to the statement of Randy Curry

(“Curry”), identified by Chevron as the president of Chevron Pipeline, in a “Newsletter from
Randy Curry to Fellow Employees”:

As many of you know, we have had a challenging start to the
year. In March, a third-party tugboat operator struck one of
our LPG pipelines near Lafitte, Louisiana, and we had a
pipeline rupture which impacted Willard Bay State Park, Utah.
Both of these incidents resulted in significant releases which
will be impacting our scorecard. With challenges come
opportunities. These incidents provide us the opportunity to
review and continuously improve our processes. We are
conducting root cause analyses of both incidents and will apply
lessons learned. Our ultimate goal remains the same – an
incident and injury-free workplace.

(Rec. doc. 253-4 at 2)(emphasis supplied).

Chevron responds to all this in brief by characterizing the deposition testimony of

Boihem cited by Settoon as “imprecise” and the Safety Handbook language quoted as

“general” to argue that the “broad, non-specific sources,” cited by Settoon are “insufficient

to overcome the express terms of the Legal Charter.” (Rec. doc. 258 at 9). The Court
disagrees. 6

The Court has reviewed all of the Boihem deposition testimony submitted by the

parties and does not find it to be imprecise. Boihem testified that she knows what a root
cause analysis is (rec. doc. 253-4 at 22) and that root cause analyses are routinely
6

The Court also notes that Chevron does not address Curry’s statement at all in its Opposition Memorandum.

15

conducted after an incident as part of Chevron’s “culture.” (Id. at 32-33). That she was not
a member of this RCA team does not render her testimony imprecise or, for that matter,
irrelevant.

The RCA at issue in this case cannot be analyzed in a vacuum – to do so would be to

ignore the very object of this inquiry, which is aimed at divining whether a root cause

analysis would have been conducted in this case “regardless of whether litigation was also
expected to ensue.” Piatkowski, 2000 WL 1145825 at *2. If this question is answered in the

affirmative, the RCA and associated documents will be “deemed to be created in the

ordinary course of business and not in anticipation of litigation.” (Id.).

The evidence and testimony before the Court establish that root cause analyses are

routinely conducted by Chevron after incidents such as these and that the purpose of such
analyses is to determine the root cause of said incidents in order to prevent similar
accidents from re-occurring.

Chevron does not dispute this, as even Youngblood

acknowledged in his declaration that such investigations are routinely undertaken “to
identify improvements to procedures or equipment.” (Rec. doc. 258-1 at 4).

The salient question is whether “legally chartered” root cause analyses are different

in kind than those “other” root cause analyses routinely conducted by Chevron. Chevron

argues that they are, essentially because its in-house counsel says they are: “Within
Chevron, legally chartered root cause investigations are not routine.” (Id.). The problem

with this conclusory and self-serving statement is that it is undermined by the testimony
and evidence before the Court, including the documents themselves.

Notably, the only root cause analysis identified and provided to the Court is the

“legally chartered” RCA in dispute. This is important because Chevron’s position, as stated
16

by Youngblood, is that “HES incident reviews are separate and distinct from root cause
analyses conducted at the request of the Law Department pursuant to a Legal Charter.”
(Id.). This argument would be more convincing if there was actually another root cause
analysis from which to distinguish the legally chartered one. Where the testimony and
evidence establishes that a root cause investigation is routinely conducted by Chevron after

an accident and the root cause analysis at issue here is the only one that was conducted, it

logically follows that the subject root cause analysis would have been conducted
“regardless of whether litigation was also expected to ensue,” and that it should therefore

be “deemed to be created in the ordinary course of business and not in anticipation of
litigation.” Piatkowski, 2000 WL 1145825 at *2. Additional evidence, including the RCA
and related documents themselves, support this conclusion.

This evidence begins with Curry’s statement to fellow employees that Chevron was

“conducting [a] root cause analysis of [the incident] and will apply lessons learned. Our
ultimate goal remains the same – an incident and injury-free workplace.” (Rec. doc. 253-4

at 2). This statement is consistent with both the Boihem testimony and the HES Handbook
guidance quoted above. Moreover, it is entirely consistent with the RCA itself, which
contains an extensive list of “Lessons Learned” as well as “Recommendations,” all of which
are clearly directed at the operations function of the company. (PL doc. 51).

There are other indicators within the RCA itself that it was intended to serve the

purposes described by Boihem and Curry: The “Team Members” identified on the cover
page of the RCA report include only the non-lawyer team members identified in the “Legal
Charter”; the “Why Tree” information is set forth in a form that is clearly used for other

incidents as well as the subject one; and the “Objectives” of the investigation, as stated in
17

the document, are “To discover what existed prior to [the] incident; [w]hat potentially
contributed to [the] incident; and [w]hat measures, if any, were missing that could have
prevented [the] incident.” (Id.). There is no mention of lawyers or litigation.

Finally, in an email setting forth the RCA Team’s findings in great detail to President

of Chevron Shipping, Michael Carthew, Team Leader Doug McCormick (a non-lawyer)

advised Carthew (also a non-lawyer) that “there is a parallel investigation being conducted

by our litigation team with aid of outside counsel in preparation of potential lawsuits.” (PL
doc. 138). The term “parallel” is not a term of art and its meaning is well understood:

“extending in the same direction, everywhere equidistant, and not meeting.” MerriamWebster’s Collegiate Dictionary, 10th ed. By definition, a thing cannot be parallel to itself.
Certainly, if the RCA Investigation, led by Mr. McCormick, was supposed to be undertaken
primarily to aid counsel in litigation, its own Team Leader was unaware of that fact. While

documents related to this “parallel investigation” conducted by the “litigation team” would
arguably be protected under the work-product doctrine, the documents before the Court
are not. 7

The Court must look past the conclusory statements and arguments of counsel to

determine the actual primary motivating factor behind creation of the RCA and related
documents and whether these documents would have been created regardless of the

possibility of litigation. In this inquiry, the Court is guided, not only by its review of the
It is also worth noting again here that, while Youngblood may have taken pains to keep the investigation
materials in the strictest of confidence, this email is evidence that others, including the Team Leader, did not.
This particular document underscores the Court’s earlier observation that in-house counsel cannot affirm,
and this Court cannot know, what happened to this supposedly confidential, privileged information once it
was shared among non-lawyers in this fashion.
7

18

aforementioned documents, but by the previous efforts of other courts faced with similar
circumstances. Two cases are particularly instructive in this regard.

First, in Carroll, supra, the court was called upon to determine whether a root cause

analysis directed by an in-house law department was subject to the work-product privilege.

Carroll, 2006 WL 1793656. In support of its position that the work was protected, Praxair
submitted an affidavit from its Safety and Environmental Services Manager that affirmed:

(1) that he was appointed to an RCA team by in-house counsel within 24 hours of the

subject accident; (2) that the team was formed in anticipation of litigation; and (3) that all
work product of the team was to be marked and kept confidential, subject to both the
attorney-client and work-product privileges. Id. at *3. These are all elements of the
Youngblood declaration in this case.

In response to this proof, the plaintiff cited deposition testimony of Praxair

employees indicating that “investigations are routinely done following any accident that

occurs at Praxair.” Id. Additionally, the plaintiff pointed to testimony establishing that, as a
result of the recommendations contained in the RCA in that case, Praxair made a number of
changes to its operations. Id. Similar evidence abounds in this record, including the

testimony of Boihem concerning root cause analyses being conducted routinely as part of

Chevrons “culture,” references in the RCA itself to lessons learned and recommendations

directed at operations functions, and Curry’s statement that those lessons learned would be
applied by the company.

The court in Praxair found that the defendant had “failed to establish that the

primary motivating factor behind the investigation and the RCA was to aid in possible
future litigation.” Id. at *4. The court observed:
19

Even if these documents were prepared with an eye towards
litigation, it is evident that the RCA contains information which
Praxair would be expected to compile in the ordinary course of
its business after an accident has occurred in order to ascertain
the cause of the accident, to evaluate equipment failures, and
to implement changes in an effort to prevent similar accidents
in the future.

Id. (citing Poseidon Oil Pipeline Co. v. Transocean
Sedco Forex, No. 00-CV-0760, 2001 WL 1360434
*4 (E.D. La. Oct. 30, 2001); Occidental Chemical
Corp. v. OHM Remediation Services Corp., 175
F.R.D. 431, 435 (W.D. N.Y. 1997)).

Based on the evidence in this matter, the same can be said of the Chevron RCA and

related materials.

The Court also finds persuasive the analysis and reasoning in In re Kidder Peabody

Securities Litigation, 168 F.R.D. 459 (S.D. N.Y. 1996). In that case, the securities firm, Kidder

Peabody (“Kidder”), discovered that one of Kidder's major traders had misappropriated
funds, causing it to overstate its earnings substantially. Id. In-house counsel for Kidder
hired outside counsel within days of this discovery, with outside counsel immediately

undertaking “an intensive fact-finding investigation to determine what had occurred and

why.” Id. at 463. In its effort to convince the court that the materials related to that
investigation were protected from discovery by the work-product privilege, Kidder

presented affidavits signed by its general counsel and outside counsel affirming that the

investigation's purpose was to permit outside counsel to defend Kidder's legal interests in
future legal proceedings and that outside counsel had indeed defended the firm in

subsequent legal proceedings. Id. However, the court looked beyond those affidavits to the
rest of the record, finding “[t]he balance of the record tells a somewhat different story”

than counsel’s affidavits. Id.

20

Based on that record, the Kidder Court found that Kidder had “failed to sustain its

burden to demonstrate that the documents at issue were created principally or exclusively
to assist in contemplated or ongoing litigation [and that] Kidder would have hired outside

counsel to perform such an inquiry even if no litigation had been threatened at the time....”

Id. The court was persuaded in part by statements made by the company in a press release
announcing the retention of outside counsel, whose role would be “to lead a

comprehensive investigation into what went wrong and to recommend steps to prevent a

recurrence.” Id. at 463. The Kidder statement calls to mind Curry’s “Statement to Fellow
Employees” wherein he advised that a root cause analysis was being conducted concerning
the subject incident and that “lessons learned” would be applied. (Rec. doc. 253-4 at 2-3).

Also, germane to the current matter, the Kidder Court observed “Kidder's affiants

offer no meaningful evidence. Instead, Kidder simply parrots the legal standard that the
interviews were conducted principally as an aid to litigation.” Id. at 463. The same can be

said of the generic pronouncements about “anticipation of litigation” in Youngblood’s
declaration in this case.

Importantly, even though the Kidder Court believed that Kidder's investigation was

conducted, in part, to prepare for anticipated litigation, that was not enough to shield the
work as privileged. The court ultimately found that because Kidder also undertook its

investigation, in part, “(1) to find out what [its trader] had done and why it had taken so
long to discover the wrongdoing, and (2) to prepare a report summarizing his factual

conclusions in detail and making recommendations for corrective action by Kidder,” the

disputed material was discoverable. Id. at 465.

21

As noted above, Chevron relies heavily on Bross v. Chevron U.S.A., Incorporated, 8 a

case in which a different Chevron “legally chartered” RCA was found to be subject to the
attorney-client and work-product privileges. Accordingly, the Court has closely reviewed
that decision, but cannot agree that it is dispositive of this matter as Chevron suggests. The

Bross decision was based in part upon that court’s in camera review of the specific RCA in
that case, which is obviously not the same document reviewed by this Court. Additionally,

there are other documents in this case, namely the Curry statement, HES Safety Handbook

and several documents related to the RCA investigation itself, the likes of which the Bross
Court apparently did not have before it in reaching its conclusion that the RCA in that case
was privileged.

The record in this case demands a different conclusion. It establishes that, while the

subject RCA was conducted, in part, to aid in preparation for litigation, it was not primarily
motivated by that concern. While counsel may have sincerely desired to keep this work

confidential, such a desire alone is insufficient to cloak the effort and related

documentation in the work product privilege. It is likewise clear to this Court from its
review of all the evidence before it that the RCA and related documents would have come

into being regardless of whether litigation was possible or anticipated, and that they are
therefore not subject to the work-product privilege.
IV.

CONCLUSION

For the foregoing reasons, Settoon’s Motion to Compel is GRANTED IN PART and

DENIED IN PART.
8

No. 06-CV-1523, 2009 WL 854446 at *4 (W.D. La. Mar. 25, 2009).

22

Documents 15, 19-25, 27, 28, and 57 are protected by the attorney-client privilege

and will not be produced. Documents 1, 4, 5, 16, 18, 26, 34, 63, 75, 80, 83, 140, and 141
contain both privileged and non-privileged information and shall be produced with the
privileged information redacted as per the Court’s instructions set forth above.

The remainder of the documents listed in the Chevron privilege log are not subject

to any privilege and are to be produced.

New Orleans, Louisiana, this 31st day of

December

, 2014.

MICHAEL B. NORTH
UNITED STATES MAGISTRATE JUDGE

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