I F G Port Holdings L L C v. Lake Charles Harbor & Terminal District
Filing
717
ORDER granting in part and denying in part 683 Motion to Quash; granting in part and denying in part 694 Motion to Quash; granting in part and denying in part 711 Motion to Quash; denying as moot 690 Motion to Compel; denying as moot [691 ] Motion to Compel; denying as moot 696 Motion to Compel; denying as moot 700 Motion to Compel; denying as moot 710 Motion to Expedite Status Conference; denying 710 Motion for an Advisory Opinion. Signed by Magistrate Judge Christine L Stetson on 2/7/2024. (crt,Alexander, E)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
IFG PORT HOLDINGS LLC.
Plaintiff,
versus
LAKE CHARLES HARBOR &
TERMINAL DISTRICT d/b/a THE
PORT OF LAKE CHARLES
Defendant.
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CIVIL ACTION NO. 2:16-CV-146
Order on Motions to Quash (docs. #683, #694, #711), Motions to
Compel (docs. #690, #691, #696, #700), and Motion to Expedite (doc. #710)
Pursuant to 28 U.S.C. § 636 and the Local Rules of Court for the Assignment of Duties to
United States Magistrate Judges, the district court referred these motions (docs. #683, #690, #691,
#694, #696, #700, #710, #711) to the undersigned for consideration and disposition. (Docs. #685,
#689, #695, #699, #707, #712.) Following a review of the relevant briefing and an in camera
review of the documents on the parties’ privilege log, the undersigned held a hearing on these
motions and ruled from the bench on February 2, 2024. In accordance with those rulings, these
motions are granted, in part, and denied, in part, as follows.
I.
Background
This diversity case is a commercial contract dispute between the parties. After a twentyday bench trial before Magistrate Judge Kay, Defendant Lake Charles Harbor & Terminal District
(“the Port”) was ordered to pay IFG over $120 million in damages. The Port then filed a motion
to vacate the referral to the magistrate judge because it allegedly discovered that Magistrate Judge
Kay and IFP’s counsel have a very close friendship beyond what was previously disclosed. The
court denied this motion and the Port appealed to the Fifth Circuit. The Fifth Circuit vacated the
district court’s denial of the motion and remanded the case. The Fifth Circuit tasked the court1 to
determine the following facts:
(1) The extent and nature of Magistrate Judge Kay’s friendship with Monk and his family;
(2) What information about these relationships Magistrate Judge Kay disclosed to the
parties and when these disclosures occurred;
(3) What precise steps the Port took upon its first discovery that a longstanding friendship
existed, i.e., what comprised its “investigation”; and
(4) When the Port first knew that Magistrate Judge Kay’s relationship to Monk extended
beyond her employment of Monk’s daughter as her law clerk.
(Doc. #668 at 31.)
II.
Documents on the Privilege Logs
The Federal Rule of Evidence 501 requires a court sitting in diversity to apply privileges
according to forum state law. FED. R. EVID. 501; In re Avantel, S.A., 343 F.3d 311, 323 (5th Cir.
2003) (collecting cases). The Louisiana attorney-client privilege is codified in the Louisiana Code
of Evidence. LA. CODE EVID. ANN. art. 506. Louisiana courts have recognized a waiver exception
to the privilege when a party places the communication or its contents “at issue” in the litigation.
Succession of Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1146 (La. 1987); State v.
Dominguez, 52 So.3d 1117, 1119 (La. Ct. of App. 2010). The exception is narrow, applying only
to the exact questions “at issue,” and does not apply to attorney work product. Forever Green
Athl. Fields, Inc. v. Babcock L. Firm, Civ. Action No. 11-633-JJB-RLB, 2014 WL 29451, at *7,
*10 (M.D. La. Jan. 3, 2014). A court may not consider how badly the other side needs the
evidence. Succession of Smith, 513 So.2d at 1146.
Pursuant to an en banc order, every district and magistrate judge in the Western District of Louisiana was recused
from the proceeding. (Doc. #672.) The case was reassigned to Judge Truncale and the undersigned. (Id.)
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Attorney-client communications and facts known to the Port’s counsel play a major role in
the inquiry before the court. When the Port moved to vacate both the referral and consent to Judge
Kay claiming it only learned of the full breadth of the relationship between Judge Kay and Monk
after the written reasons for judgment (doc. #464) were issued on July 31, 2020, it placed these
factual inquiries in play. Moreover, the Port acknowledges that the information was learned and
investigated by the Port’s counsel, not the Port itself, rendering the information known to the Port’s
counsel “at issue.”
“The attorney–client privilege is the oldest of the privileges for confidential
communications known to the common law.” Upjohn Co. v. United States, 449 U.S. 383, 389
(1981). Tracing back to the reign of Elizabeth I, the privilege is meant to “encourage the client to
confide fully in his counsel without fear that his disclosures could be used against him by his
adversaries.” State v. Green, 493 So. 2d 1178, 1180 (La. 1986) (quoting State v. Rankin, 465 So.2d
679 (La.1985)). The undersigned’s ruling here seeks to strike a fine balance between the sanctity
of that attorney-client privilege while also adhering to the Fifth Circuit’s order.
Accordingly, the undersigned finds that the Port waived its attorney-client privilege, but
only as to the factual inquiry outlined by the Fifth Circuit. Defense counsels’ work product
protection has not been waived. The undersigned, hereby, adopts her rulings from the bench on
counsels’ privilege logs and orders the production of the specific documents discussed at the
hearing.
III.
IFG’s Subpoenas
In addition to her in camera review of documents on the various privilege logs, the
undersigned made global rulings on the parties’ various discovery motions. In its initial Motion
to Quash (doc. #683), to which most of the other motions are simply tangential, the Port asks the
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court to quash IFG’s subpoenas. Specifically, IFG sent subpoenas for documents to (1) Robichaux,
Miz, Wadsack, Richardson & Watson, LLC, (2) Norman Business Law Center, (3) McGlinchey
Stafford PLLC, (4) the Long Law Firm, (5) Taylor, Porter, Brooks, & Phillips, LLP, and (6) Stone
Pigman Walther Wittman LLC. (Doc. #683-4 at 8-9, 18-19, 28-29, 38-39, 48-49, 58-59, 94-95).
Requests 1 through 11 are identical across all the law firms.
Pursuant to the ruling from the bench, the undersigned orders the following. Requests 1(a),
1(b), 1(g), and 1(h) are quashed as overbroad, as the proposed search terms would produce many
documents that have no relevance to the issue before the court. For example, request 1(a) asks for
all documents that contain or relate to “Magistrate Judge Kay” which could include any document
about any case before Judge Kay during the timeframe at issue as opposed to those related to this
case and the facts at issue. Request 2 is quashed, in part, as to documents referencing the case
assignment to Judge Minaldi, as that topic is irrelevant to any of the factual inquiries before the
court. Requests 3 and 4 are quashed to the extent that IFG is seeking documents unrelated to the
relationship between Judge Kay and Monk. Request 5 is quashed, in part, as to any documents
that solely reflect a lawyer’s thought process as such disclosure would violate the work product
doctrine, and the documents are generally irrelevant. Request 8 is quashed, in part, as to any
documents unrelated to the Port’s investigation. Request 10 is quashed as the documents sought
are irrelevant and, therefore, “at issue waiver” has not occurred. Finally, Request 11 is quashed,
in part, as to anything unrelated to the investigation or drafting of the Mize affidavit. The
Motion to Quash (doc. #683) is, therefore, granted in part and denied in part as set forth above.
IV.
IFG’s Request for Deposition Compliance
In the Motion to Quash (doc. #683), the Port seeks to quash or at least limit the number
and breadth of the depositions requested by IFG. Louisiana Code of Evidence Article 508 places
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strict protections on when a party may depose a lawyer about their representation of a client. LA.
CODE EVID. ANN. art. 508. The parties must be afforded an opportunity to debate2 whether
attorney-client privilege applies, the necessity of the requested deposition, any reasonable
limitations, and other information set forth in the Louisiana Code of Evidence. Id. For example,
the parties must be heard on the issue of whether “[t]he information sought is essential to the
successful completion of an ongoing investigation, is essential to the case of the party seeking the
information, and is not merely peripheral, cumulative, or speculative.” LA. CODE EVID. ANN. art.
508(A)(1). Based on her concern for the cumulative nature of the requested depositions, the
undersigned granted the Motions to Quash (docs. #683, #694, #711) as to Jonathan Ringo, Michael
Rubin, Michael McKay, and Matthew Pettaway but noted IFG may re-urge the issue after taking
the other scheduled depositions. The depositions of Matthew Mize and Merrick Norman, may
proceed but questions must be limited to the Fifth Circuit’s factual inquiry.
V.
Expedited Hearing Request
Finally, the Port filed a Motion for Expedited Status Conference (doc. #710), asking the
court to (1) address the discovery requests contained in the motions addressed in this order, and
(2) provide advice on how the Port should address a possible motion from IFG to disqualify the
Port’s current counsel due to their alleged status as fact witnesses. As the undersigned held a
hearing on February 2, 2024, to address the discovery, the Port’s first request is denied as moot.
A Louisiana state court must offer a “contradictory hearing” before a lawyer is deposed to address the above topics.
LA. CODE EVID. ANN. art. 508. Federal courts, however, may satisfy the substance of Article 508 through briefing.
See Le Mons v. Gov. Employs. Ins. Co., Civ. Action No. 21-247-SDD-SDJ, 2022 WL 2517188, at *3 (treating oral
argument and briefing—without hearing testimony—as sufficient to meet the substance of Article 508); Utility Constr.,
Inc. v. Perez, Civ. Action No. 15-4675, 2016 WL 4429935, at *2 (finding “oral argument and presentation of live
testimony are not necessary” to meet Article 508 requirements in federal court); but see Acadian Diagnostic Labs.,
LLC v. Quality Toxicology, Civ. Action 16-00176-JJB-RLB, 2017 WL 9439103, at *2 (implying a full contradictory
hearing is required, which seemingly includes testimony). Here, the undersigned entertained briefing and held a
hearing on the issues set forth in Article 508.
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The Port’s second request is denied as there is no pending recusal motion before the court, meaning
any ruling on that issue would constitute an advisory opinion.
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VI.
Order
For the foregoing reasons, it is ORDERED that the Motions to Quash (docs. #683, #694,
#711) are GRANTED, in part, and DENIED, in part, in accordance with the undersigned’s ruling
from the bench and this order. It is further ORDERED that the Motions to Compel (docs. #690,
#691, #696, #700) are DENIED as moot, and the Motion for Expedited Status Conference (doc.
#710) is DENIED as moot as to the Port’s request for a hearing and DENIED as to the Port’s
request for an advisory opinion.
IT IS SO ORDERED.
SIGNED this the 7th day of February, 2024.
___________________________________
Christine L Stetson
UNITED STATES MAGISTRATE JUDGE
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