Reid v. Transocean Offshore Deepwater Drilling, Inc.

Filing 18

ORDER AND REASONS ON MOTION. Defendant's Motion to Quash Subpoena Issued to David Gautreaux c/o Shuman Consulting, Record Doc. No. 16, is currently pending before me in this matter. Plaintiff filed a timely written opposition memorandum. Record Doc. No. 17. Having considered the written submissions of the parties, the record and the applicable law, IT IS ORDERED that defendant's motion is GRANTED IN PART AND DEFERRED IN PART as set forth herein. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 5/2/14. (tbl)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

DARRYL REID

CIVIL ACTION

VERSUS

NO. 13-6080

TRANSOCEAN OFFSHORE
DEEPWATER DRILLING, INC.

SECTION “I” (2)

ORDER AND REASONS ON MOTION
Defendant’s Motion to Quash Subpoena Issued to David Gautreaux c/o Shuman
Consulting, Record Doc. No. 16, is currently pending before me in this matter. Plaintiff
filed a timely written opposition memorandum. Record Doc. No. 17.
Having considered the written submissions of the parties, the record and the
applicable law, IT IS ORDERED that defendant’s motion is GRANTED IN PART AND
DEFERRED IN PART as follows.
The motion is granted as to Items Nos. 1 and 2 of Exhibit “A” to the subpoena duces
tecum. Record Doc. Nos. 16-2 at p. 3. All objections are overruled, except that the
objection concerning the amount of time provided in the subpoena for production of the
materials requested in these two items is sustained because it was unreasonably short.
Accordingly, IT IS ORDERED that the subpoena is modified as to Items Nos. 1 and 2 of
Exhibit “A” to require instead that the subpoena recipient must produce to plaintiff’s
counsel all materials in his possession, custody or control that are responsive to these two
items of the subpoena no later than May 12, 2014.

The motion is deferred as to the materials described in Items Nos. 3 and 4 of Exhibit
“A” to the subpoena, as to which defendant/movant has asserted attorney-client privilege
and/or work product objections. The current record provides only the unsubstantiated
argument of counsel as to these objections and fails at this time to provide me with the
evidence required to decide this part of the motion.
A party resisting discovery bears the burden of proof to demonstrate the existence
of any privilege or work product protection in the materials. United States v. Newell, 315
F.3d 510, 525 (5th Cir. 2002); In re Santa Fe Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001);
Hodges, Grant & Kaufman v. United States, 768 F.2d 719, 721 (5th Cir. 1985); Ingraham
v. Planet Beach Franchising Corp., No. 07-3555, 2009 WL 1076717, at *1 (E.D. La. Apr.
17, 2009) (Berrigan, J.); Kiln Underwriting Ltd. v. Jesuit High Sch., No. 06-04350, 2008
WL 108787, at *4-5 (E.D. La. Jan. 9, 2008) (Roby, M.J.) (citing Hodges, 768 F.2d at 721);
United States v. Impastato, No. 05-325, 2007 WL 2463310, at *2 (E.D. La. Aug. 28, 2007)
(Duval, J.) (citing United States v. Harrelson, 754 F.2d 1153, 1167 (5th Cir. 1985); United
States v. Kelly, 569 F.2d 928, 938 (5th Cir. 1978)).
Once the proponent has properly asserted the privilege claim and the
requisite information about the allegedly privileged document
provided to the opponent, the proponent must substantiate all actual
assertions about the claim. This is usually done through supporting
affidavits from individuals with personal knowledge of the relevant
facts, exhibits attached to the motion and briefs, discovery responses,
pleadings and other undisputed facts. . . . To the extent that
evidentiary support for the factual basis of the privilege is not
forthcoming, the claim is little more than a bald, conclusory, or ipse
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dixit assertion. The court will deny such an assertion because it
forecloses meaningful independent inquiry by the finder of facts (the
judge) into the validity of the claim. . . . Although an attorney’s word
may be “taken on its face,” a privilege claim is not self-executing. It
requires more proof than a conclusion by the party asserting the claim
(or his attorney) that it is justified.
P. Rice, Attorney-Client Privilege in the United States § 11:10 at 977-80 (Lawyers
Cooperative 1993) (emphasis added). No proof has been submitted by defendant in support
of its work product or privilege claims; e.g. whether the materials were made in anticipation
of litigation or to assist counsel in trial preparation, as opposed to some other non-protected
purposes, such as regulatory compliance, safety enhancement or other ordinary course of
business function; or whether they were communications made in the attorney-client
privilege context. Proof – not mere lawyer argument – is required to determine if the
withheld materials are privileged, work product, Rule 26(b)(3) material or otherwise
protectable from discovery.
In addition, even if defendant establishes the application of privilege or work
product doctrine as to the requested discovery, I cannot determine on the current record
whether plaintiff can make the required Rule 26(b)(3)(A)(ii) showing or establish some
privilege exception or waiver that would nevertheless make the subpoenaed materials
discoverable.
Accordingly, IT IS ORDERED that no later than May 12, 2014, defendant must
file a supplemental memorandum in support of its motion, (a) supported by any evidence,

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in affidavit form or otherwise verified, sufficient to establish the asserted grounds for
protection of the materials from discovery, and (b) produce only to the court for my in
camera review the identified materials that defendant is withholding from production on
work product, Rule 26(b)(3) or privilege grounds.
IT IS FURTHER ORDERED that plaintiff must file his response to defendant’s
submission, including any necessary evidence to make the Rule 26(b)(3)(A)(ii) showing,
no later than May 19, 2014. Thereafter, the deferred portion of this motion will be decided
on the record without further briefing or oral argument.

2nd
New Orleans, Louisiana, this _________ day of May, 2014.

JOSEPH C. WILKINSON, JR.
UNITED STATES MAGISTRATE JUDGE

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