Burroughs Diesel, Inc. v. Baker Petrolite, LLC et al
ORDER granting in part and denying in part 71 Motion to Compel. Signed by Magistrate Judge Michael T. Parker on December 11, 2018. (MMc)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
BURROUGHS DIESEL, INC.
CIVIL ACTION NO. 2:18-cv-26-KS-MTP
BAKER PETROLITE, LLC, et al.
THIS MATTER is before the Court on Plaintiff’s Motion  to Compel Discovery
against Defendants, Baker Petrolite and Baker Hughes. 1 Having considered the parties’
submissions, the Court finds that Motion to Compel  should be granted in part and denied in
This action arises out of the alleged failure of a tank, owned by Defendants, on October
14, 2016 that contained hydrochloric acid. The acid allegedly traveled through the air and
damaged Plaintiff’s real and personal property.
On August 16, 2018, Plaintiff served interrogatories and requests for production of
documents on Defendants. See Notices , , , . On August 31, 2018, Defendant
Baker Petrolite filed its discovery responses. See Notices , . On October 1, 2018,
Defendant Baker Hughes Oilfield Operations filed its discovery responses. See Notices ,
The Court held a conference with the parties on October 30, 2018 to discuss several
discovery disputes. After the parties were unable to agree on all the issues, Plaintiff filed the
Poly Processing Company, LLC is also a named defendant in this action. The Motion to
Compel  is not directed at Poly Processing. As the Court references Defendants in this Order it only
refers to Defendants Baker Petrolite, LLC and Baker Hughes Oilfield Operations.
The Court applies the standard set forth in Federal Rule of Civil 26(b)(1) which allows
for discovery of material that is proportional to the case and non-privileged. “The party seeking
discovery bears the burden of showing its necessity.” Freeman v. United States, 556 F.3d 326,
341 (5th Cir. 2009). Discovery is “to be accorded a broad and liberal treatment to effect [its]
purposes of adequately informing litigants in civil trials.” Herbert v. Lando, 441 U.S. 153, 176
(1979). “At some point, however, discovery yields diminishing returns, needlessly increases
expenses, and delays the resolution of the parties’ dispute.” Willis v. City of Hattiesburg, 2016
WL 918038, at *2 (S.D. Miss. Mar. 10, 2016). Discovery disputes are left to the discretion of
the trial court. Freeman, 556 F.3d at 341. Having carefully considered the Motion, the Court
rules as follows:
Interrogatory No. 7
Interrogatory No. 7: Please identify all ruptures of tanks containing hydrochloric acid
in tanks owned by Baker Petrolite or Baker Hughes for the last ten (10) years, and
identify specifically the location, cause of the rupture of the tank, amount of acid
spilled, and reference all claims for damages or civil actions arising from the rupture
of the acid spill.
This information is relevant to the claims at issue, but the request is far too broad.
Defendants have already answered this interrogatory regarding all ruptured tanks owned by
Baker and manufactured by Poly Processing within the past five years in Mississippi, Louisiana,
and Alabama. Plaintiff also requests this information regarding Texas.
The request will be granted in part. Defendants shall identify any such ruptures of tanks
for a five-year period, from the date suit was filed, in Mississippi, Louisiana, Alabama, and
Texas which have resulted in the filing of a lawsuit. For any such lawsuit filed, Defendants shall
provide the names of the parties, identify the court where the suit was filed, and the cause
number. The Motion to Compel as to Interrogatory No. 7 is GRANTED IN PART and DENIED
IN PART as set forth above.
Interrogatory No. 11
Interrogatory No. 11: Please state the company or individuals that you purchased
hydrochloric acid from for the five (5) years prior to the subject spill on October 14,
2016, identify the person or entity who filled the tank and at what pneumatic pressure
by which the tank was filled, and list the persons or entities who utilized or purchased
hydrochloric acid withdrawn from the subject tank within this five (5) year period.
Plaintiff concedes that Defendants have already provided records pertaining to the filling
of the tank for the past five years. The only issue remaining is records regarding the identity of
the purchasers and how much hydrochloric acid was purchased.
Defendants assert that the transfer of acid from the tank at issue to the intermediary tank,
from which the acid was actually sold, was not recorded, and records of customer purchases
from the intermediary tank will not aid the Plaintiff in calculating how much acid was in the tank
at issue when the alleged failure occurred. Mem.  at 4-5. The Court finds that this
information would not be relevant to the claims and defenses considering that the acid that was
sold was drawn from an intermediary tank and not the tank at issue. The burden of producing
this information outweighs any likely benefit. 2 The Motion to Compel as to Interrogatory No. 11
Interrogatory No. 16
Interrogatory No. 16: Please provide a list containing the model number, year
manufactured and serial number of any and all storage tanks which you have
previously purchased from Poly Processing Company, LLC on any storage facility
owned by Baker Petrolite and Baker Hughes, identify each tank which has cracked,
ruptured, or leaked, and give dates, locations and cause of the cracks, ruptures, or
It does not appear that this information for any time period would be helpful to Plaintiff if it is
never established how much was in the tank at the beginning of any given period.
Plaintiff states in its Motion that it would limit the scope of this interrogatory to the past
five (5) years within the states Mississippi, Louisiana, Alabama, and Texas. Mot.  at 4.
Defendants have already provided this information regarding tanks in Mississippi, Louisiana,
and Alabama, but they object to providing the information from Texas.
provide this information regarding any such tanks which are the subject of any lawsuit identified
in Interrogatory No. 7. The Motion to Compel as to Interrogatory No. 16 is GRANTED IN
PART and DENIED IN PART as set forth above.
Request for Production No. 3
Request for Production No. 3: Please produce all documentation of any type or sort
relating to purchase of tanks from Poly Processing Company, LLC (“Poly
Processing”) or any other manufacturer for storage of hydrochloric acid for the last ten
(10) years, including all documents relating to any of the tanks that have cracked or
ruptured, the specific reasons for any cracking or rupture, the amount of acid leaked
or spilled, and reference all civil actions by entities or persons alleging damages from
the acid spill(s).
Plaintiff states in in its Motion that it would limit the scope of this request to the past five
(5) years, from the date of the rupture, within the states of Mississippi, Louisiana, Alabama, and
Texas. Mot.  at 5. Defendants have provided this information regarding tanks in
Mississippi, Louisiana, and Alabama from 2011-2016. See Resp.  Ex. D. Defendants shall
produce this information for the five years prior to filing suit for any tank manufactured by or
purchased from Poly Processing that resulted in litigation in Mississippi, Alabama, Louisiana, or
Texas. The Motion to Compel as to Request for Production No. 3 is GRANTED IN PART and
DENIED IN PART.
Request for Production No. 6
Request for Production No. 6: Please produce any and all documentation, including
emails and electronically stored data, between you and any insurance company or
expert who investigated the claim of the Plaintiff, concerning the investigation of the
cause of the spill or damages resulting from the spill, including documents to and from
Custard Adjusting Company and Rimkus Consulting.
Defendants object to producing the report created by Custard Adjusting Company and the
sub-contractor of Custard Adjusting, Rimkus Consulting, asserting attorney-client privilege and
the work-product doctrine. They make similar objections to producing certain correspondence
between Custard Adjusting and the in-house counsel. Defendants argue that Custard Adjusting
was hired after their in-house counsel requested Gallagher Bassett Services, their third-party
administrator, to hire an entity to participate in the inspection of the spill. Mem.  at 5.
Custard Adjusting then hired Rimkus Consulting to inspect Plaintiff’s tire inventory that was
allegedly damaged by the acid spill. It is Defendants’ position that Custard Adjusting is their
agent because it was hired by Gallagher Basset, Defendants’ claim-service provider, and the
purpose of the report created by Custard Adjusting and communications with Custard Adjusting
was to help in-house counsel assess the claims against Defendants. Id. at 6.
First, the Court will consider whether the Custard report and other communications
between Custard Adjusting and Rimkus Consulting to Defendants’ in-house counsel is protected
by the work-product doctrine. Plaintiff argues that that report created by the insurance adjuster
from Custard Adjusting was not made in anticipation of litigation and is therefore not protected
as work product. Mot.  at 4-5. The Custard report at issue was created on November 21,
2016 and communicated to Defendants’ in-house counsel and a representative for Gallagher
Bassett that same day. See Resp.  Ex. E. Plaintiff asserts that its counsel sent a letter to
Gallagher Bassett on February 14, 2017 and that this was the first indication of imminent
litigation, and the report created by Custard on November 21, 2016 was produced prior to
Defendants’ anticipation of litigation. Reply  at 11. Further, Plaintiff argues that “facts
discovered by an independent claims adjustor, during the ordinary course of its inspection of
property damages, are not protected work product.” Id. at 14. If work product is properly
claimed by Defendants, Plaintiff requests that the Court conduct an in camera review of the
report and the withheld communications to redact the work product. Id. at 15.
Defendants counter that the work done by Custard Adjusting was done in anticipation of
litigation. Defendants point to a letter they received on October 19, 2016 from counsel for
Travelers Insurance Company, the insurer of Plaintiff, titled “Notice of Potential Claim”
regarding the chemical spill on October 14, 2016. See Resp.  Ex. F. Defendants argue that
this letter from Travelers put them on notice of a potential lawsuit, the report created by Custard
Adjusting came after this date, and the report was created to respond to a specific circumstance
and not in the routine course of business. Mem.  at 7.
The work-product doctrine protects material prepared in anticipation of litigation. See
generally Hickman v. Taylor, 392 U.S. 495 (1947). “The party asserting the privilege bears the
burden of proving that the information requested is privileged.” Barker v. Kinder Morgan Se.
Terminals, LLC, 2007 WL 4333843, at *1 (S.D. Miss. Dec. 6, 2007) (referencing In re Santa Fe
Int’l Corp., 272 F.3d 705, 710 (5th Cir. 2001)). The Court must consider for what purpose the
document or documents at issue were created. If the “primary motivating purpose” in creating
the documents was to aid possible future litigation, then the work-product doctrine applies.
United States v. Davis, 636 F.2d 1028, 1040 (5th Cir. 1981).
Work product covers both “ordinary work product, such as memorandum and outlines,
and opinion work product, including the opinions, strategies, or mental impressions of an
attorney.” In re Xarelto (Rivaroxaban) Products Liability Litigation, 314 F.R.D. 397, 402 (E.D.
La. 2016) (citing Restatement (Third) Of The Law Governing Lawyers § 87 (2000)). “The
work-product [doctrine] includes not only the attorney’s product, but also the product of the
attorney’s agent.” Sanchez v. Matta, 229 F.R.D. 649, 654 (D.N.M. 2004). “[T]he doctrine
protect[s] material prepared by agents for the attorney as well as those prepared by the attorney
himself.” U.S. v. Nobles, 422 U.S. 225, 238-239 (1975).
The record reflects that Defendants employed Gallagher Bassett who then retained
Custard Adjusting and Rimkus Consulting in preparation of litigation. The Court finds that
Defendants were put on notice of potential, if not imminent, litigation when they received the
letter from Travelers’s attorney on October 19, 2016. The work performed after this date is
protected by the work-product doctrine.
This case is dissimilar to the numerous insurance cases in which an insurance company,
as defendant, withholds its files and reports regarding a policy, claiming work-product privilege.
Documents created by an insurer in a routine investigation are generally not considered work
product. See Willis v. Allstate Ins. Co., 2014 WL 1882387 (S.D. Miss May 12, 2014). In this
instance, however, Defendants are not an insurance company, and in-house counsel for
Defendants only retained the services of an insurance adjuster to asses their liability in
preparation for litigation and after receiving a letter from Travelers’s counsel entitled “Notice of
Next, the Court will consider whether the Custard report and other communications with
Defendants’ in-house counsel are protected by attorney-client privilege. Plaintiff asserts that the
documents created by Custard Adjusting and Rimkus Consulting are not protected by attorneyclient privilege because the report at issue was created in the normal course of business and not
for legal representation. Reply  at 6-7. Further, Plaintiff argues that Defendants have
waived any attorney-client privilege regarding the Custard report because Defendants have
produced correspondence between Gallagher Bassett, Custard Adjusting, and Defendants’ in-
house counsel. Id. at 7. Plaintiff requests that if attorney-client privilege is found that the Court
conduct an in camera review of the report and communications and redact the portions that are
Defendants argue that the attorney-client privilege does apply to the communications
between Custard Adjusting and its in-house counsel. It is Defendants’ position that any work
done by Custard was at the initiation of in-house counsel and the report and communications
were for facilitating in-house counsel’s assessment of claims against Defendants. Mem.  at
6. Defendants resist disclosing communications between its in-house counsel and third-party
contractors hired to assist them regarding the hydrochloric acid spill.
“State law determines the applicability of a privilege in civil diversity actions where state
law supplies the rule of the decision.” Baptist Health v. BancorpSouth Ins. Servs., Inc., 270
F.R.D. 268, 272 (N.D. Miss. 2010) (citing Dunn v. State Farm, 927 F.2d 869, 875 (5th Cir.
1991)). Mississippi Rule of Evidence 502(b) explains the privilege as follows:
(b) General Rule of Privilege. A client has a privilege to refuse to
disclose—and to prevent others from disclosing— any confidential
communication made to facilitate professional legal services to the client: (1)
between the client or the client’s representative and the client’s lawyer or the
lawyer’s representative; (2) between the client’s lawyer and the lawyer’s
representative; (3) by the client, the client’s representative, the client’s lawyer,
or the lawyer’s representative to another lawyer or that lawyer’s representative,
if: (A) the other lawyer represents another party in the pending case; and (B) the
communication concerns a matter of common interest; (4) between the client’s
representative or between the client or a client representative; or (5) among
lawyers and their representatives representing the same client.
The question is whether the insurance adjuster employed by Custard Adjusting constitutes
a representative of the Defendants for purposes of the above rule.
The Court has not found a Mississippi case that directly addresses this issue. Another
court, however, has held that the confidential communications between a defendant’s counsel
and a defendant’s independent insurance adjuster, for purposes of legal advice or information,
were entitled to attorney-client privilege. Residential Constructors, LLC v. Ace Property and
Cas. Ins. Co., 2006 WL 3149362, at *15 (D. Nev. Nov. 1, 2006). 3
The Mississippi Supreme Court has stated that
“the privilege relates to and covers all information regarding the client received
by the attorney in his professional capacity and in the course of his
representation of the client. Included are communications made by the client to
the attorney and by the attorney to the client. In that sense it is a two-way street.”
Barnes v. State, 460 So.2d 126, 131 (Miss. 1984) (emphasis added). Another court has stated
that the “privilege protection attaches to those communications that would facilitate the rendition
of legal services or advice.” United Investors Life Ins. Co. v. Nationwide Life Ins. Co., 233
F.R.D. 483, 487 (N.D. Miss. 2006).
Here, a report was created by an insurance adjuster employed by Custard Adjusting at the
request of Defendants’ in-house counsel. While this information was communicated from the
third-party to the attorney, the Court finds that the insurance adjuster was acting to aid counsel
for Defendants and the report is protected by attorney-client privilege. Further, the act of
communicating this information, regarding the client, to the in-house counsel for Defendants
creates a privileged communication.
The attorney-client privilege only extends to communications and not to facts. Upjohn
Co. v. United States, 449 U.S. 383, 395 (1981). “The client cannot be compelled to answer the
Other courts have found that the attorney-client privilege can extend to communications
between the attorney and an independent contractor of the client. See In re Copper Mkt. Antitrust Litig.,
200 F.R.D. 213, 218-19 (S.D.N.Y. 2001) (finding that a public relations specialist that worked with inhouse counsel regarding pending litigation was equivalent of an employee); Royal Surplus Lines Ins. Co.
v. Sofamor Danek Grp., Inc., 190 F.R.D. 463 (W.D. Tenn. 1999) (finding that attorney-client privilege
extended to insurance broker’s consultations with in-house counsel and insured); W. Res., Inc. v. Union
Pac. R.R. Co., 2002 WL 181494 (D. Kan. Jan. 31, 2002) (finding that expert hired to consult regarding
anticipated litigation was within scope of attorney-client privilege).
question, ‘What did you say or write to the attorney?’ but may not refuse to disclose any relevant
fact within his knowledge merely because he incorporated a statement of such a fact into his
communication to his attorney.” Id. at 395-396 (quoting City of Philadelphia, Pa. v.
Westinghouse Electric Corp., 205 F. Supp. 830, 831 (E.D. Pa. 1962)). The communications
between Custard Adjusting and Defendants are by their nature privileged. Additionally, the
Custard report is privileged because it was communicated to Defendants’ in-house counsel while
she was providing legal advice and services. The “facts” contained in the report may be
discoverable through different avenues, but the report itself and related communications cannot
Once the party asserting the attorney-client privilege meets its burden, the burden shifts
to the party opposing the privilege to show that an exception or waiver applies. Hewes v.
Langston, 853 So.2d 1237, 1262-1263 (Miss. 2003). Defendants have asserted attorney-client
privilege related to communications between Custard Adjusting and its in-house counsel.
Plaintiff has not demonstrated why the attorney-client privilege should not apply in this situation.
Plaintiff does argue, however, that the Custard report should be produced in a redacted
form because it has a substantial need for this information. The Court is not convinced that there
is substantial need. Further, Plaintiff argues that the work-product doctrine and attorney-client
privilege have been waived by other disclosures. After reviewing the record, the Court cannot
conclude that Defendants waived the privilege or protection afforded these documents.
The report at issue and all other communications between Defendants’ counsel and thirdparty agents, Gallagher Basset, Custard Adjusting, and Rimkus Consulting, are protected by the
work-product doctrine and attorney-client privilege. An in camera review of the Custard report
and the withheld communications is not necessary. The Motion to Compel as to Request for
Production No. 6 is DENIED.
Request for Production No. 8
Request for Production No. 8: Please produce all documents including emails and
electronically stored data, relating to your investigation of the cause of the subject
cracking and/or damages, resulting from the spill, including your incident report,
investigation report, or any other reports relating to the cause of the cracking or tank
rupture, and any expert consulting firm hired by you or your liability carrier, including
but not limited to, all photographs taken by you, your insurance company, or
consultants hired by your liability carrier.
Defendants initially objected to this request citing attorney-client privilege and workproduct doctrine. They have since produced an incident report and a power-point presentation
relating to the incident report. Mem.  at 7. Defendants assert that all other documents
included in this request are protected by attorney-client privilege and are noted in their privilege
Plaintiffs argue the same position as to Request for Production No. 6 that the report
produced by Custard Adjusting is not protected. As previously stated, the Court finds that the
report and related communications are protected by the work-product doctrine and attorneyclient privilege. The Motion to Compel as to Request for Production No. 8 is DENIED.
Request for Production No. 19
Request for Production No. 19: Please produce all documents of your purchase of any
acid storage tank manufactured by Poly Processing for the last ten (10) years and state
the date, cause of failure, and amount of acid spilled from any prior cracking or leakage
of tanks manufacture by Poly Processing.
Defendants have provided Plaintiff with information regarding tanks manufactured by
Poly Processing which ruptured or leaked between 2011-2016 in Mississippi, Louisiana, and
Alabama. See Resp.  Ex. D. Defendants object to providing any further information
concerning the failure of tanks manufactured by Poly Processing. Plaintiff asserts that
Defendants should provide, at a minimum, any information relating to the tank used at
Defendants’ Laurel, Mississippi location prior to the purchase of the tank at issue.
The Court finds that Defendants should produce documents related to the tank utilized
by Defendants prior to the purchase of the tank at issue, as well as the tank at issue. This
information is relevant to how these tanks were handled and how often they were purchased at
the Laurel, Mississippi facility. Plaintiff’s Motion to Compel as to Request for Production No.
19 is GRANTED as it relates to the tank at issue and the prior tank and DENIED as to all other
information or relief requested.
Request for Production No. 21
Request for Production No. 21: Please produce any and all documents relating to your
testing of any other acid storage tank manufactured by Poly Processing or any other
tank manufactured for the last ten (10) years as a result of any cracking leaking or
ruptures and produce the test results, incident report or investigation reports on each
Plaintiff states in its Motion that it would limit the scope of this request to the past five (5)
years in the geographical region of Mississippi, Alabama, Louisiana, and Texas. Mot.  at 8.
Defendants have supplemented their responses and provided this information regarding
Mississippi, Alabama, and Louisiana for 2011-2016. See Resp.  Ex. D. Information about
other tanks is at best of limited relevance and use. The Court finds the information about other
tanks in other rulings 4 to be sufficient. The Court finds that the information already produced is
proportional to the needs of this case and will not compel Defendants to produce this information
regarding Texas. The Motion to Compel as to Request for Production No. 21 is DENIED.
See rulings regarding Interrogatory No. 7, Interrogatory No. 16, Request for Production No. 3,
and Request for Production No. 22.
Request for Production No. 22
Request for Production No. 22: Please produce the incident report required by federal
and state law as to the cause of the subject tank rupture and hydrochloric acid spill,
and all prior incident reports on tank ruptures and acid spills for the last (10) years for
tanks manufactured by Defendant, Poly Processing.
Defendants have produced an incident report regarding the tank at issue but object to
providing any reports relating to other ruptures for the past ten years arguing that such a request
is overbroad considering that Defendants operate in over 120 countries and other tanks are
unrelated to Plaintiff’s claims. See Resp.  Ex. G. Plaintiff disagrees and argues that these
reports are relevant and should be produced for at least the past five years.
Defendants have supplemented and provided any information regarding tank issues for the
five years prior to the subject-tank rupture in Mississippi, Louisiana, and Alabama. The Court is
not convinced that all reports concerning tank accidents worldwide, for ten (10) years prior to the
subject tank rupture, would be proportional to the needs of the case. However, Defendants shall
produce requested incident reports for ruptures or spills that resulted in any litigation in
Mississippi, Louisiana, Alabama, and Texas for the five years preceding the filing of this lawsuit.
The Motion to Compel as to Request for Production No. 22 is GRANTED IN PART and
DENIED IN PART as set forth above.
Request for Production No. 23
Request for Production No. 23: Please produce any and all electronically stored data
or documentation which in any way relates to the investigation of the cause of the tank
rupture, drafting of any incident report and any alleged damages sustained by Plaintiff,
and investigation thereof.
Defendants objected to this request citing attorney-client privilege and work-product
doctrine. Plaintiff argued in return that the requested documents were relevant and Defendants
had yet to provide a complete privilege log from which Plaintiff could consider what documents
were withheld based on these privileges. Defendants subsequently provided an incident report
along with a power-point presentation and updated their privilege log, which included all the
responsive documents that were not produced. See Resp.  Ex. E.
As the Custard Adjusting report and related communications need not be produced and
Plaintiff has not contested any other particular item on the privilege log, apart from the Custard
Adjusting report, the Court finds that the Motion to Compel as to Request for Production No. 23
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion to Compel Discover  is
GRANTED IN PART and DENIED IN PART as set forth above. Except as noted above, all
other relief is DENIED.
SO ORDERED, this the 11th day of December, 2018.
s/Michael T. Parker
United States Magistrate Judge
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