Exxon Mobil Corporation v. Northwestern Corporation

Filing 145

ORDER REGARDING PRODUCTION OF DOCUMENTS- READ ORDER FOR DETAILS. Signed by Magistrate Judge John Johnston on 9/27/2017. (AMC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
EXXON MOBIL CORPORATION, a
New Jersey Corporation,

Case No. 1:16-cv-00005-BLG-BMM

Plaintiff,

ORDER

v.
NORTHWESTERN CORPORATION
dba NORTHWESTERN ENERGY, a
Delaware Corporation,
Defendant.
I.

BACKGROUND
Plaintiff Exxon Mobil Corporation (“XOM”) is a New Jersey Corporation

that operates a refinery in Billings, Montana. XOM receives power for its refinery
through Defendant Northwestern Corporation dba Northwestern Energy (“NWE”).
In January of 2014 and January of 2016, XOM’s Billings refinery suffered a power
outages. As a result, XOM claims it suffered damages based on the loss of power
and alleges that the outages were directly caused by NWE’s negligent design,
installation, and maintenance of its equipment and systems.
II.

STATUS
On August 30, 2017, the Court held a hearing in relation to the parties’ cross

motions to compel discovery. (Docs. 121, 134). After hearing argument, the Court
granted XOM’s motion to compel and took NWE’s motion to compel under
advisement.

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The Court ordered XOM to produce to the Court the documents indicated on
its privilege log (Doc. 142-1), the redacted page XOM00274064 (Doc. 135-2), and
a redacted page from Joaquim Demagalhaes’s presentation (XOM00284176), for
an in camera review. (Doc. 143). The documents XOM claimed were privileged
were generally related to a “hindsight investigation,” which it claimed was
instigated in anticipation of litigation and is therefore not discoverable under Fed.
R. Civ. P. 26(b)(3). XOM also withheld certain documents under the attorneyclient privilege based on communications between several employees and
corporate counsel. XOM fully complied with the Court’s order on September 6,
2017. (Doc. 144).
III.

DISCUSSION
In general, a litigant is entitled to “obtain discovery regarding any

nonprivileged matter that is relevant to any party's claim or defense [.]”
Fed.R.Civ.P. 26(b)(1). Also, “[r]elevant information need not be admissible at the
trial if the discovery appears reasonably calculated to lead to the discovery of
admissible evidence.” Id.
Upon a party's failure to disclose requested information the requesting party
may move to compel the opposing party to produce the requested discovery
materials. Fed.R.Civ.P. 37(a)(1). Specifically, a party's failure to answer an
interrogatory, or to respond to a request for production are grounds for obtaining
an order compelling disclosure. Fed.R.Civ.P. 37(a)(3)(B).
Based on the liberal discovery policies of the Federal Rules of Civil
Procedure, a party opposing discovery carries a “heavy burden” of showing why
discovery should not be allowed. Blankenship v. Hearst Corp., 519 F.2d 418, 429
(9th Cir. 1975). “The party who resists discovery has the burden to show that
discovery should not be allowed, and has the burden of clarifying, explaining, and

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supporting its objections.” DIRECT TV, Inc. v. Trone, 209 F.R.D. 455, 458
(C.D.Cal. 2002) (citing Blankenship, 519 F.2d at 429).
In ruling on a motion to compel, “[b]road discretion is vested in the trial
court to permit or deny discovery[.]” Hallett v. Morgan, 296 F.3d 732, 751 (9th
Cir. 2002).
A. Privilege Log
The hallmark of the work product doctrine is that the document sought to be
protected was “prepared in anticipation of litigation.” Fed. R. Civ. P. 26(b)(3). “It
is well established that documents prepared in the ordinary course of business are
not protected by the work-product doctrine because they would have been created
regardless of the litigation.” Parrick v. FedEx Grounds Package Sys., 2010 WL
2854314, *10 (D. Mont. July 19, 2010) (citing Heath v. F/V ZOLOTOI, 221 F.R.D.
545, 549–50 (W.D. Wash. 2004) (quoting Advisory Committee Notes to
Fed.R.Civ.P. 26(b)(3)). Furthermore, “even if documents prepared in the ordinary
course of business might also be helpful in preparation for litigation, they do not
qualify for protection” under the work product doctrine. Heath at 550 (citing
United States v. Adlman, 134 F.3d 1194, 1202 (2nd Cir. 1998). Also, attempting to
delegate a business activity to legal counsel does not shield an investigation from
discovery. Lumber v. PPG Industries, Inc., 168 F.R.D. 641, 646 (D. Minn. 1996).
In determining whether a document was prepared for an ordinary business purpose
or in anticipation of litigation, “[t]he circumstances surrounding the document’s
preparation must also be considered.” In re Grand Jury Subpoena, 357 F.3d 900,
908 (9th Cir. 2004).
According to the privilege log, XOM had submitted a draft of the outline for
the hindsight investigation by at least February 22, 2014. (Doc. 144-2 at 1). In
this document, XOM listed its “objectives” for the hindsight investigation which

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did not include a section on legal recourse or reference potential litigation. This
evidences to the Court that the hindsight investigation was conducted for business
reasons unrelated to future litigation. Moreover, XOM states in a letter to the
Court: “[i]n late February, it was unclear whether the hindsight investigation would
be conducted in an open, non-privileged format, or in a closed, privileged and work
product context.” (Doc. 144-1 at 2). As of February 23, 2017, XOM’s corporate
counsel had still not “decided” whether the investigation should be privileged.
(See id.) (“. . . the final decision about whether to privilege or not is still to be
made”).
These circumstances lead the Court to believe that XOM had decided to
conduct the hindsight investigation for business reasons on or before February 22,
2014–before XOM’s counsel stepped in and attempted to protect it under the work
product doctrine. The hindsight investigation therefore would have been
conducted “regardless of the litigation,” and was not prepared in anticipation of
litigation.
Based on the circumstances surrounding the hindsight investigation, XOM
has not met its high burden of showing that these documents were created in
anticipation of litigation. Accordingly, the documents related to the hindsight
investigation are not protected by the work product doctrine and must be produced.

Several of the documents produced by XOM, however, do contain
communications to and from XOM’s corporate attorney. Such communications are
protected by attorney-client privilege and are protected from disclosure to NWE.
The Court orders the documents be produced with the communications to and from
XOM’s corporate counsel redacted.

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B. Joaquim Demagalhaes’s Presentation
XOM disclosed the final presentation regarding the hindsight investigation,
save one redacted page. (Doc. 144-2 at 4; Log Entry 505R; XOM0028416). The
page, one slide of a Powerpoint presentation, was marked “Legal Recourse.” The
Court determines that this page directly reveals communications protected by the
attorney-client privilege and it also relates to the attorney’s mental impressions
about the legal options available to XOM and it is therefore also protected by the
work product doctrine. Therefore, the Court orders that it is protected from
discovery by NWE.
IV.

CONCLUSION
For the reasons stated above, the Court Orders the following:
1. Plaintiff Exxon Mobil Corporation must produce the following

documents from its Privilege Log (Doc. 144-2) in full, on or before October 3,
2017:
Log Nos. 9; 10; 11; 227R; 472; 553; 557; 571; 589; 597; 603; 607; 608;
609; 610; 611; 613; 614; 615; 616; 617; and 618.
2. Plaintiff Exxon Mobil Corporation must produced the following
documents with redactions on or before October 3, 2017. The document marked
Log No. 595 must be produced with the third complete sentence redacted. The
documents marked Log Nos. 601 and 612 must be produced subject to the same
redaction as Log. No. 595. Additionally, with respect to Log Nos. 536 and 600,
XOM must produce the email sent on March 13, 2014 at 6:13pm with the email
sent on March 13, 2014 at 10:12am redacted.
3. The document marked Log No. 505R may not be produced in its
unredacted form, as it contains attorney work product and falls within the attorneyclient privilege

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4. The document marked Log. No. 222R may not be produced, as it falls
within the attorney-client privilege.
Dated this 27th day of September, 2017.

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