Petroplex International, LLC et al v. St. James Parish et al

Filing 148

ORDER: ORDERED that 82 Motion to Compel is GRANTED in part and DENIED in part. IT IS GRANTED as to the documents that the Court held are not privileged. The documents that correspond to the listed Bates numbers are not privileged. FURTHER GRANT ED as to documents that correspond to the following Bates numbers were blank pages and thus not privileged: 11806, 22494, 22742. IT IS DENIED as to the documents that the Court held are privileged. The documents that correspond to the listed Bates numbers are privileged. Signed by Magistrate Judge Karen Wells Roby. (cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PETROPLEX INTERNATIONAL, LLC ET
AL

CIVIL ACTION

VERSUS

NO:

ST. JAMES PARISH ET AL

SECTION: “H” (4)

15-140

ORDER
Before the Court is a Motion to Compel Against Plaintiffs (R. Doc. 82), filed the
Defendants seeking an Order from the Court to compel Plaintiffs to produce emails that, they
argue, Plaintiffs are improperly withholding as privileged. R. Doc. 82, p. 1. The motion is opposed.
See R. Doc. 99.
I.

Background
Plaintiffs, Mainline Energy Partners No. 2, LLC ("Mainline") and Homeplace Ventures

No.2, LLC ("Homeplace"), own adjoining tracts of land fronting the west bank of the Mississippi
River in St. James Parish. Plaintiff Petroplex is the lessee of the property. This action arises from
Defendants’ alleged enactment, interpretation and enforcement of a Parish-wide land use
ordinance that precludes Plaintiffs from building and operating a ten million barrel petroleum tank
farm in the Parish. R. Doc. 1, p. 4. Plaintiffs contend that St. James Parish encouraged the
development of the tank farm1 for years, but now oppose the project. Id. Plaintiffs argue that they
have spent years and millions of dollars to develop the facility, and the Parish and its representative
are now preventing its development. Id.
Plaintiffs argue they selected a 1,780 acres tract of land near the west bank of the
Mississippi River in St. James Parish because there were no zoning or land restrictions in place in
the Parish that would prevent the construction and operation of their facility on the property. Id. at

5. On September 25, 2007, Plaintiffs agreed to purchase the property with the intention of
developing the property as a tank farm facility. Id. Plaintiffs argue that Defendants (parish council
members, the parish president, and a permit supervisor) initially supported the project and
submitted letters of support to the United States Department of Agriculture (“USDA”) and in
support of a loan to the Bank of Montgomery to provide funds for the purchase and development
of the property. Id. at 10. Plaintiffs contend that as a result of support from Parish officials, they
obtained a $20,000,000 loan from the Bank of Montgomery and a USDA Rural Development Fund
guarantee for $14,000,000 of the loan amount. Id. at 11. Plaintiffs also argue that they spent years
to prepare the site, including a number of environmental and feasibility studies. Id. at 6.
Contrary to their initial support, Plaintiffs argue that Defendants later enacted Parish
Ordinance No. 86-37, which restricted the property’s use to residential and agricultural purposes.
In an attempt to mitigate their damages and clarify the ordinance, Plaintiffs applied to the Parish
Planning Commission and the Parish Council for approval to use the property as a tank farm
facility. Plaintiffs contend that they submitted drawings and plans for the Parish’s review and
consideration.
The Parish Council adopted St. James Parish Resolution 14-84, which approved Plaintiffs’
use of the property as a tank farm. Plaintiffs contend that they adhered to the Resolution and
continued to construct their site. To Plaintiffs’ surprise, the Parish issued a Work Stop Order on
December 4, 2014. Id. at 25.
The matter was placed, on the Parish Council’s January 7, 2015, meeting agenda. Plaintiffs
were allowed to make a presentation. After failed attempts to resolve the issue, the instant suit was
filed. Plaintiffs argue that the Land Use Plan, the Resolution, and the Parish’s actions constitute
an unconstitutional taking. Plaintiffs also ask for damages pursuant to 42 U.S.C. § 1983 and assert

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state law claims for detrimental reliance. In their pending motion for preliminary injunction before
the District Court, Plaintiffs seek to enjoin the enforcement of the Ordinance, the Resolution, and
the Stop Work Order. See R. Doc. 25.
On October 19, 2015, the District Court dismissed Plaintiffs’ individual-capacity claims
against Parish Council Members Alvin St. Pierre, Jason Amato, Terry McCreary, Ralph Patin,
Charles Ketchens, Ken Brass, and James Brazen based on legislative immunity. R. Doc. 71. The
District Court also dismissed Plaintiffs’ official-capacity claims against Parish President Timothy
Roussel; Parish Planning/Permitting Supervisor Ryan Donadieu; and Parish Council Members
Alvin St. Pierre, Jason Amato, Terry McCreary, Ralph Patin, Charles Ketchens, Ken Brass, and
James Brazen. Id.
As to the instant motion, on November 24, 2015, the Court ordered counsels to appear for
oral argument on December 2, 2015, for Defendants’ Motion to Compel (R. Doc. 82). In its order,
the Court advised Plaintiffs’ counsel to review carefully their 502-page privilege log and remove
Bates numbers that correspond to documents that are blank or duplicative. The Court also advised
counsel for Plaintiffs to review their assertion of privilege for every document and remove any
documents that they deem, upon further review, to be not privileged. As ordered, Plaintiff
provided the Court and counsel for Defendant with an updated privilege log on November 30th.
The updated privilege log was 150 pages, which was 352 pages less than their original privilege
log.
II.

Rulings Made During Oral Argument
A.

December 2, 2016 Hearing

During the hearing, the Court listened to arguments from each party and reviewed each
document that corresponds to Bates numbers on the first sixteen pages of Plaintiffs’ updated log.

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The Court concluded the hearing on Bates number 22789. The Court then ordered counsels to
reappear before the Court on Thursday, December 3, 2015, at 9:30 a.m. The below rulings
regarding whether documents corresponding to the following Bates are privileged or not privileged
were made during the December 2nd hearing.
1.

Privileged

The Court ordered that documents that correspond to the following Bates numbers are
privileged: 2779 (bottom portion), 2780, 2781, 2782, 5459, 5763 (email attachment), 6217-6218
(email attachment), 1034, 11805, 11954-90, 12033-34 (communication between Shack and Boyd),
12616-12626, 13576-81, 14987-88, 16234 (middle email), 16235, 16345 (communication on May
19, 2011, at 5:19 a.m.), 17617-18, 17620-21, 17622-23, 17624-27, 17630-31 (communication on
May 21, 2013, at 12:04pm), 17680-83 (communication on May 23, 2013, at 3:13 p.m.), 17691-93,
17694-99, 17734, 17735, 17784-88, 17790-5, 17796-01, 20820-21, 20833, 22611-24, 22618,
22457-59, 22493 (bottom portion), 22495 (bottom portion).
2.

Not Privileged

The Court ordered that documents that correspond to the following Bates numbers are not
privileged: 1472, 2101, 2102, 2103, 2014, 2105, 2011, 2112, 2113, 2591 (top portion), 2779 (email
January, 8, 2013, at 11:09 a.m.), 2783, 2784, 5458, 5763, 6217-6218, 1031-33, 1035-37, 1203334 (email on January 25 at 11:00 p.m.), 13575, 14141, 15115-15138, 16226-27, 16234, 16235
(second paragraph not protected), 14905-07, 14959, 16291-92, 16346, 16347-48, 17558-17651
(subject to redactions), 17564-67 (subject to redactions), 17575-77, 17590-92 (counsel agreed to
produce), 17611-12 (counsel agreed to produce), 17619 (signature line page), 17630-31 (top and
bottom portions not protected), 17632-45 (counsel agreed to produce), 17733, 17885, 17888-91,
17893-99, 17910-12 (counsel agreed to produce), 20455 (counsel agreed to produce), 20519-69,

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20791-92, 20819, 21296-21485 (counsel agreed to produce), 21361-62 (counsel agreed to
produce), 21650-55 (counsel agreed to produce), 22414-16, 22618-24 (counsel agreed to produce),
22251-52, 22424-48, 22493 (top section), 22495 (top section), 22567-68 69 (counsel agreed to
produce), 22569, 22611-17 (counsel agreed to produce), 22618-24, 22629-32, 22648-54 (counsel
agreed to produce), 22676-95 (counsel agreed to produce), 22704 (communication at April 5,
2015), 22707-08, 22711-12, 22742, 22748-52 (counsel agreed to produce), 22771-72 (counsel
agreed to produce), 22788-89. Further, the documents that correspond to the following Bates
numbers were blank pages and thus not privileged: 11806, 22494, 22742.
B.

December 3, 2016 Hearing

During the December 3, 2016 hearing, the Court continued its review of Plaintiffs’
privilege log. The Court began at Bates number 22809 and ended the hearing at Bates number
24626. At the end of the hearing, the Court ordered counsel for Plaintiffs to review their log and
release any document for which Plaintiffs’ do not assert an attorney-client privilege that were sent
to Plaintiffs’ equity partners and unrelated to the instant litigation. The Court then continued the
hearing until Wednesday, December 16, 2015, at 11:00 a.m. The following rulings were made
during the December 3, 2016, hearing:
The Court also allowed counsel for Plaintiffs to continue withholding documents, subject
to their asserted common-interest privilege, from Boyd Bryan or documents seeking legal advice
from Boyd Bryan, even if sent to Plaintiffs’ equity partners. Counsel for Plaintiffs represented to
the Court that Boyd Bryan, an attorney with Jones Walker LLP, routinely advised Plaintiffs on
permitting matters. Counsel for Plaintiffs also stated that their equity partners (Quanta Services,
Macquarie Capital, Verwater, and Harley Marine) and they retained Boyd Bryan to provide legal
advice on matters giving rise to the instant litigation, including the Ordinance, the Resolution, and

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the Stop Work Order. On January 15, 2016, the Court overruled Plaintiffs’ assertion of the
common-interest privilege and held that the common-interest doctrine does not apply to
communications identified on their privilege log between Plaintiffs, their attorneys, and their
actual or potential investors and. R. Doc. 126, p. 9. The Court ordered the release of any document
that was shared with an actual or potential investor. Id. The following rulings were made during
the December 3, 2015, hearing.
1.

Privileged

The Court ordered that documents that correspond to the following Bates numbers are
privileged: 23385-87, 23525-26, 23559-71, 23589, 23590, 23614, 23774, 23898 (email on April
22, 2014), 23911 (top section), 24218, 24230-31 (email at11:53 a.m.), 24235 (email at 11:53 a.m.),
24266, 24271, 24285, 24287, 24301, 24302-07, 24314-30, 24515 (bottom portion beginning with
email at 9:51 a.m.), 24561, 24592 (email on May 2, 2015, at 7:22 a.m.), 24593-98.
2.

Not Privileged

The Court ordered that documents that correspond to the following Bates numbers are not
privileged: 22911-22915 (counsel agreed to produce), 22916-21 (counsel agreed to produce),
22922 (counsel agreed to produce), 22924 (counsel agreed to produce), 22925-26 (counsel agreed
to produce), 22927-28 (counsel agreed to produce), 23075 (top section), 22310-22, 23401, 23412,
23412, 23413, 23415-17, 23418-19, 23420 (email at 2:20 p.m.), 23424, 23429, 23430, 23434-37,
23438-40, 23441, 23512, 23525-36, 23350 (first section), 23351, 23556-58, 23556, 23573, 23611,
23677-79, 236781, 23682, 23699, 23738-40, 23741, 23749-50, 23803 (email dated April 20,
2014), 23810 (last communication at 9:29 a.m.), 23811, 23812 (communication on10:22 a.m. is
subject to redaction), 23814, 23819, 23888, 23894, 23898 (emails on s8:29 p.m., 12:48 p.m., and
12:50 p.m.), 23901 (email from Sellers), 23904, 23906 (starting with the second to last email),

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23906 (starting with second to the last email dated April 22, 2014, at 12:40 p.m.), 23907 (first
email can be redacted, the rest is not protected), 23918, 23911 (bottom section), 23914, 23919,
23920 (emails at 9:59 p.m. and 9:50p.m.), 23922-23, 23923 (emails at 9:58 p.m. and 9:38 p.m.),
23927, 23928-29 (counsel agreed to produce), 23930, 23931, 23932 (email at 7:12 a.m.), 23933,
23994, 23936 (top email at 7:10 a.m. and email dated April 22, 2014, at 10:39 p.m.), 23939, 23940
(emails at 7:06 p.m. and 9:02 p.m.), 24203 (email at 11:56 a.m.), 24217, 24220, 24221, 24223,
24224, 24227, 24428, 24229, 24232, 24233, 24234, 24236-43, 24244, 24245, 24246, 24248,
24249, 24250, 24251, 24252, 24253, 24254, 24254, 24258, 24260, 24262, 24263, 24264, 24267,
24269, 24272-76, 24278, 24279, 24280-83, 24286, 24290, 24291, 24292, 24293, 24294, 24296,
24297, 24298-99, 24308 (top email), 24309, 24310, 24311, 24313, 24331, 24396, 24397, 24398,
24420-34, 24435-47, 24448, 24449, 24450, 24451-63, 24469-71, 24472-44, 24475-48, 24480-92,
24496, 24513, 24516-25, 24528, 24530, 24532, 24533, 24534 (top portion), 24543-44, 24553,
24560, 24590, 24591, 24608, 24609, 24618, 24618-26.
C.

December 16, 2016 Hearing
1.

Privileged

The Court ordered that documents that correspond to the following Bates numbers are
privileged: 29000, 29260 29261, 292771-72, 30151, 30152, 30534-55, 30683, 30684, 30787-88,
30789, 30790, 30791, 30794, 31392, 31730, 31777-78, 31800-01, 32795-96, 33182-88, 33250,
33947-51, 34081, 34187, 34710, 30152, 3471155, 36214, 36216, 36715, 37896-99, 39092-95,
42341, 42370, 42371, 43443-46, 43529-31, 43529-31, 43572-75, 43750-60, 44480-81, 4482-83,
44501-02, 44578, 44640-42, 45271-72.

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2.

Not Privileged

The Court ordered that documents that correspond to the following Bates numbers are not
privileged: 28856-57, 28858, 28859-60, 28958-59, 29151, 29257, 29266-70, 292789-90, 29279192, 30051, 30379, 30418-19, 30427-29, 30474-80, 30481-84, 30485093, 30394-30500, 30501-12,
30532-33, 30690, 30691, 31776, 31990-81, 32228, 33195, 33202, 33229, 33287, 33288, 33290,
33248-49, 33447-48, 33449, 33450-51, 33462, 33768, 33771-75, 22778-82, 33904, 33905, 33909,
33918, 33925-32, 33957-58, 33962-63, 34058-34059, 34060-61, 34155, 34156-57, 34188, 34452,
34453, 34454, 34498, 34525, 34529, 34538-44, 34545-56, 34576-77, 34711, 35024, 25061,
35061-89, 35607, 35608-13. 35809, 35810, 35969, 35970, 35970, 35975, 35988, 36629, 36653,
36748, 36880, 36901, 36901, 36918-19, 37626, 37633, 37676, 37761, 37900-03, 37926-29,
37942-43, 37963-64, 38773-74, 39110-11. 39200, 39201-03, 39204-06, 42337-42340, 42342,
42350-54, 42359-60, 42372, 42373, 42387, 42388-92, 43571, 43749, 44495-97, 44503-05, 4450610, 44579.
III.

Conclusion
Accordingly,
IT IS ORDERED that the Defendant’s Motion to Compel (R. Doc. 82) is GRANTED

in part and DENIED in part.
IT IS GRANTED as to the documents that the Court held are not privileged. The
documents that correspond to the following Bates numbers are not privileged:
1472, 2101, 2102, 2103, 2014, 2105, 2011, 2112, 2113, 2591 (top portion), 2779
(email January, 8, 2013, at 11:09 a.m.), 2783, 2784, 5458, 5763, 6217-6218, 103133, 1035-37, 12033-34 (email on January 25 at 11:00 p.m.), 13575, 14141, 1511515138, 16226-27, 16234, 16235 (second paragraph not protected), 14905-07,
14959, 16291-92, 16346, 16347-48, 17558-17651 (subject to redactions), 1756467 (subject to redactions), 17575-77, 17590-92 (counsel agreed to produce), 1761112 (counsel agreed to produce), 17619 (signature line page), 17630-31 (top and
bottom portions not protected), 17632-45 (counsel agreed to produce), 17733,
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17885, 17888-91, 17893-99, 17910-12 (counsel agreed to produce), 20455 (counsel
agreed to produce), 20519-69, 20791-92, 20819, 21296-21485 (counsel agreed to
produce), 21361-62 (counsel agreed to produce), 21650-55 (counsel agreed to
produce), 22414-16, 22618-24 (counsel agreed to produce), 22251-52, 22424-48,
22493 (top section), 22495 (top section), 22567-68 69 (counsel agreed to produce),
22569, 22611-17 (counsel agreed to produce), 22618-24, 22629-32, 22648-54
(counsel agreed to produce), 22676-95 (counsel agreed to produce), 22704
(communication at April 5, 2015), 22707-08, 22711-12, 22742, 22748-52 (counsel
agreed to produce), 22771-72 (counsel agreed to produce), 22788-89, 22911-22915
(counsel agreed to produce), 22916-21 (counsel agreed to produce), 22922 (counsel
agreed to produce), 22924 (counsel agreed to produce), 22925-26 (counsel agreed
to produce), 22927-28 (counsel agreed to produce), 23075 (top section), 22310-22,
23401, 23412, 23412, 23413, 23415-17, 23418-19, 23420 (email at 2:20 p.m.),
23424, 23429, 23430, 23434-37, 23438-40, 23441, 23512, 23525-36, 23350 (first
section), 23351, 23556-58, 23556, 23573, 23611, 23677-79, 236781, 23682,
23699, 23738-40, 23741, 23749-50, 23803 (email dated April 20, 2014), 23810
(last communication at 9:29 a.m.), 23811, 23812 (communication on10:22 a.m. is
subject to redaction), 23814, 23819, 23888, 23894, 23898 (emails on s8:29 p.m.,
12:48 p.m., and 12:50 p.m.), 23901 (email from Sellers), 23904, 23906 (starting
with the second to last email), 23906 (starting with second to the last email dated
April 22, 2014, at 12:40 p.m.), 23907 (first email can be redacted, the rest is not
protected), 23918, 23911 (bottom section), 23914, 23919, 23920 (emails at 9:59
p.m. and 9:50p.m.), 23922-23, 23923 (emails at 9:58 p.m. and 9:38 p.m.), 23927,
23928-29 (counsel agreed to produce), 23930, 23931, 23932 (email at 7:12 a.m.),
23933, 23994, 23936 (top email on 7:10 a.m. and email dated April 22, 2014, at
10:39 p.m.), 23939, 23940 (emails at 7:06 p.m. and 9:02 p.m.), 24203 (email at
11:56 a.m.), 24217, 24220, 24221, 24223, 24224, 24227, 24428, 24229, 24232,
24233, 24234, 24236-43, 24244, 24245, 24246, 24248, 24249, 24250, 24251,
24252, 24253, 24254, 24254, 24258, 24260, 24262, 24263, 24264, 24267, 24269,
24272-76, 24278, 24279, 24280-83, 24286, 24290, 24291, 24292, 24293, 24294,
24296, 24297, 24298-99, 24308 (top email), 24309, 24310, 24311, 24313, 24331,
24396, 24397, 24398, 24420-34, 24435-47, 24448, 24449, 24450, 24451-63,
24469-71, 24472-44, 24475-48, 24480-92, 24496, 24513, 24516-25, 24528, 24530,
24532, 24533, 24534 (top portion), 24543-44, 24553, 24560, 24590, 24591, 24608,
24609, 24618, 24618-26, 28856-57, 28858, 28859-60, 28958-59, 29151, 29257,
29266-70, 292789-90, 292791-92, 30051, 30379, 30418-19, 30427-29, 30474-80,
30481-84, 30485093, 30394-30500, 30501-12, 30532-33, 30690, 30691, 31776,
31990-81, 32228, 33195, 33202, 33229, 33287, 33288, 33290, 33248-49, 3344748, 33449, 33450-51, 33462, 33768, 33771-75, 22778-82, 33904, 33905, 33909,
33918, 33925-32, 33957-58, 33962-63, 34058-34059, 34060-61, 34155, 34156-57,
34188, 34452, 34453, 34454, 34498, 34525, 34529, 34538-44, 34545-56, 3457677, 34711, 35024, 25061, 35061-89, 35607, 35608-13. 35809, 35810, 35969,
35970, 35970, 35975, 35988, 36629, 36653, 36748, 36880, 36901, 36901, 3691819, 37626, 37633, 37676, 37761, 37900-03, 37926-29, 37942-43, 37963-64,
38773-74, 39110-11. 39200, 39201-03, 39204-06, 42337-42340, 42342, 42350-

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54, 42359-60, 42372, 42373, 42387, 42388-92, 43571, 43749, 44495-97, 4450305, 44506-10, 44579.
IT IS FURTHER GRANTED as to documents that correspond to the following Bates
numbers were blank pages and thus not privileged: 11806, 22494, 22742.
IT IS DENIED as to the documents that the Court held are privileged. The documents that
correspond to the following Bates numbers are privileged:

2779 (bottom portion), 2780, 2781, 2782, 5459, 5763 (email attachment), 62176218 (email attachment), 1034, 11805, 11954-90, 12033-34 (communication
between Shack and Boyd), 12616-12626, 13576-81, 14987-88, 16234 (middle
email), 16235, 16345 (communication on May 19, 2011, at 5:19 a.m.), 17617-18,
17620-21, 17622-23, 17624-27, 17630-31 (communication on May 21, 2013, at
12:04pm), 17680-83 (communication on May 23, 2013, at 3:13 p.m.), 17691-93,
17694-99, 17734, 17735, 17784-88, 17790-5, 17796-01, 20820-21, 20833, 2261124, 22618, 22457-59, 22493 (bottom portion), 22495 (bottom portion), 23385-87,
23525-26, 23559-71, 23589, 23590, 23614, 23774, 23898 (email on April 22,
2014), 23911 (top section), 24218, 24230-31 (email at 11:53 a.m.), 24235 (email at
11:53 a.m.), 24266, 24271, 24285, 24287, 24301, 24302-07, 24314-30, 24515
(bottom portion beginning with email at 9:51 a.m.), 24561, 24592 (email on May
2, 2015, at 7:22 a.m.), 24593-98, 29000, 29260 29261, 292771-72, 30151, 30152,
30534-55, 30683, 30684, 30787-88, 30789, 30790, 30791, 30794, 31392, 31730,
31777-78, 31800-01, 32795-96, 33182-88, 33250, 33947-51, 34081, 34187, 34710,
30152, 3471155, 36214, 36216, 36715, 37896-99, 39092-95, 42341, 42370, 42371,
43443-46, 43529-31, 43529-31, 43572-75, 43750-60, 44480-81, 4482-83, 4450102, 44578, 44640-42, 45271-72.

New Orleans, Louisiana, this 2nd day of February 2016.

KAREN WELLS ROBY
UNITED STATES MAGISTRATE JUDGE

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