Leblanc et al v. Texas Brine Company LLC et al

Filing 48

ORDER re 1 Texas Brines Company LLC's Motion to Quash is GRANTED IN PART and DENIED IN PART, as set forth herein. All production shall take place within thirty days of the date of this Order. With respect to the eight classes of subpoenaed d ocuments, the Court orders as follows: (1) Frontier is not required to produce these documents as the request is overly broad; (2)-(5) Frontier shall produce these documents subject to privilege screening and production of a log consistent with Fed. R. Civ. P. 26(b)(5)(A); (6) Frontier shall produce these documents; (7) Frontier shall produce these documents subject to privilege screening and production of a log consistent with Fed. R. Civ. P. 26(b)(5)(A); and (8) Frontier shall produce these documents. Signed by Honorable Timothy D. DeGiusti on 3/7/17. (ml)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

LISA T. LEBLANC, et al.,
Plaintiffs,
v.
TEXAS BRINE CO., LLC, et al.,
Defendants.

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Case No. CIV-16-1026-D

ORDER
Before the Court is Texas Brine Company, LLC’s (“Texas Brine”) Motion to Quash
Subpoena Duces Tecum to Frontier International Group, LLC (“Frontier”) [Doc. No. 1].
Occidental Chemical Corporation (“Oxy”) has responded [Doc. No. 19], and Texas Brine
has replied [Doc. No. 28]. Following unsuccessful attempts to resolve the discovery
dispute, 1 a hearing was held on Tuesday, February 7, 2017, to address Texas Brine’s
Motion. Having considered the Motion, papers, related exhibits, and oral arguments, Texas
Brine’s Motion is GRANTED IN PART and DENIED IN PART, as set forth herein. 2
Factual and Procedural Background
This action seeks to enforce a subpoena duces tecum issued in a civil action pending
in the United States District Court for the Eastern District of Louisiana, Leblanc. v. Texas

1

The parties met and conferred on December 15, 2016, and again in chambers before the February
7, 2017 hearing. See Order [Doc. No. 42] at 1; Notice [Doc. No. 43] at 1.
2

Rule 45 authorizes this Court – the court in the district where compliance is required – to enforce,
quash, or modify the subpoena duces tecum. See Fed. R. Civ. P. 45(d)(3).

Brine Co., LLC, Case No. 2:12-CV-2059-JCZ-MBN. Texas Brine and Oxy are codefendants in the Louisiana action, which concerns a sinkhole located on land owned by
Oxy and mined by Texas Brine. Soon after the sinkhole’s first appearance on August 3,
2012, Texas Brine, through its former attorney, retained Frontier 3 to provide advice on
emergency management, government and community relations, litigation settlement
strategy, and media consulting. Additionally, Texas Brine retained Todd Beyer (“Beyer”)
to assist Texas Brine’s counsel in preparing information for dissemination to the press,
elected officials, and the community regarding the company’s remediation efforts. In
October, 2013, Texas Brine retained Brooks Altshuler (“Altshuler”), attorney and
Frontier’s owner and principal, in his individual capacity to further advise the company on
response and remediation efforts and to negotiate with State and local government
agencies. Finally, in September, 2014, Texas Brine’s current counsel retained Frontier as
a consulting expert for trial preparation.
On December 18, 2014, Texas Brine filed a third-party demand and cross-claim
against Oxy seeking indemnity, or alternatively, contribution for approximately $80
million spent in responding to the sinkhole.

Texas Brine amended its demand in

September, 2015, stating the amount incurred had risen to $100 million. Oxy then issued
a subpoena duces tecum to third-party Frontier requesting production of the following eight

3

Frontier is an “Oklahoma-based management consulting and strategic advisory firm.” Mot. [Doc.
No. 1] at 5.

2

classes of documents related to services provided by Frontier, Beyer, and Altshuler to
Texas Brine:
1.

Any and all documents concerning the Napoleonville Salt Dome, in
Assumption Parish, Louisiana;

2.

Any and all documents concerning the sinkhole occurrence on the
Napoleonville Salt Dome in Assumption Parish on or about August
2012;

3.

Any and all documents concerning the events leading up to the
sinkhole occurrence that occurred on the Napoleonville Salt Dome in
Assumption Parish in or about 2012;

4.

Any and all communications with Texas Brine Company, LLC or any
employees, agents, or counsel thereof concerning the sinkhole
occurrence, the response to the sinkhole occurrence, the cause(s) of
the sinkhole, and any aspect of the ongoing litigation in Louisiana and
Texas pertaining to the sinkhole occurrence;

5.

Any and all communications with Sonny Cranch or any employee of
Cranch Hardy & Associates concerning the sinkhole occurrence, the
response to the sinkhole occurrence, the cause(s) of the sinkhole, and
any aspect of the ongoing litigation in Louisiana and Texas pertaining
to the sinkhole occurrence;

6.

Any and all communications with any members of the media or public
concerning the sinkhole occurrence, the response to the sinkhole
occurrence, the cause(s) of the sinkhole, and any aspect of the ongoing
litigation in Louisiana and Texas pertaining to the sinkhole
occurrence;

7.

Any and all public statements generated by or on behalf of Texas
Brine Company, LLC and/or any other entity in connection with the
sinkhole occurrence, the cause(s) of the sinkhole, and any aspect of
the ongoing litigation in Louisiana and Texas pertaining to the
sinkhole occurrence, including drafts, revisions, distribution lists, and
correspondence related thereto; and

8.

Any interview transcripts, video footage, newspaper clippings, online
articles, or other published, printed or distributed media in your
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possession concerning the sinkhole occurrence, the response to the
sinkhole occurrence, the cause(s) of the sinkhole, and any aspect of
the ongoing litigation in Louisiana and Texas pertaining to the
sinkhole occurrence.
Subpoena [Doc. No. 1-3] at 5-6.
Texas Brine filed its Motion on September 2, 2016, claiming attorney-client
privilege and work product protection. In its Response, Oxy argues that neither privilege
protects Frontier from production of documents related to the non-legal services that
Frontier provided to and billed Texas Brine for, and that Frontier must provide Oxy a
privilege log listing any documents withheld under either privilege. 4 In its Reply, Texas
Brine contends that attorney-client privilege extends beyond legal advice, and in this case,
protects all communications between it and Frontier, Beyer, and Altshuler.
Standard
A. Standing
The general rule regarding standing is that only the party to whom the subpoena is
directed has standing to object to its issuance. See, e.g., Shirazi v. Childtime Learning Ctr.,
Inc., 2008 WL 4792694, at *1 (W.D. Okla. Oct. 31, 2008) (unpublished opinion);
Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 590 (D. Kan. 2003); Brown v.
Braddick, 595 F.2d 961, 967 (5th Cir. 1979). However, an exception to that rule applies
where the challenging party asserts a privilege with respect to the materials subpoenaed.

4

Oxy further argues that Texas Brine has waived any attorney-client privilege and work product
protection by bringing a cross-claim for response cost reimbursement. However, when questioned at the
February 7, 2017 hearing, Oxy did not advance this argument. Accordingly, the Court will not address it
here.

4

See Shirazi, 2008 WL 4792694, at *1; Brown, 595 F.2d at 967; see also 9A Charles Allen
Wright & Arthur R. Miller, Federal Practice and Procedure § 2459 (3d ed. 2008). To
satisfy the standing requirement on this basis, the challenging party must specifically
identify the privilege upon which it relies. See Hitachi Med. Sys. America, Inc. v. Branch,
2010 WL 3222424, at *2 (N.D. Ohio Aug. 13, 2010) (unpublished opinion); Streck, Inc. v.
Research & Diagnostic Sys., Inc., 2009 WL 1562851, at *3 (D. Neb. June 1, 2009)
(unpublished opinion); Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Colo. 1997).
B. Attorney-Client Privilege
The attorney-client privilege protects “confidential disclosures [made by the client]
to an attorney . . . in order to obtain legal assistance.” Fisher v. United States, 425 U.S.
391, 403 (1976).

The purpose of the privilege “is to encourage full and frank

communication between attorneys and their clients.” Upjohn Co. v. United States, 449
U.S. 383, 389 (1981). “In order to balance this protection of confidentiality with the
competing value of public disclosure, however, courts apply the privilege only where
necessary to achieve its purpose and construe the privilege narrowly because it renders
relevant information undiscoverable.” United States v. Mejia, 655 F.3d 126, 132 (2d Cir.
2011). The party claiming the privilege has the burden to assert the privilege specifically.
Id.; see also United States v. El Paso Co., 682 F.2d 530, 541 (5th Cir. 1982). Blanket
assertions of the privilege are ineffective because they “disable the court and the adversary
party from testing the merits of the claim of privilege.” El Paso Co., 682 F.2d at 541.

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C. Work-Product Doctrine
Although broader than attorney-client privilege, the work product doctrine “only
applies to attorneys’ or legal representatives’ mental impressions, conclusions, opinions,
or legal theories authored in anticipation of litigation.” Grace United Methodist Church v.
City of Cheyenne, 451 F.3d 643, 668 (10th Cir. 2006) (citing Fed. R. Civ. P. 26(b)(3);
Hickman v. Taylor, 329 U.S. 495, 510-511 (1947)); see also In re Grand Jury Matter, 147
F.R.D. 82, 86 (E.D. Penn. Dec. 31, 1992); United States v. Nobles, 422 U.S. 225, 238
(1975) (“At its core, the work product doctrine shelters the mental processes of the
attorney, providing a privileged area within which he can analyze and prepare his client’s
case.”). Fed. R. Civ. P. 26(b)(3)(A) incorporates the work product doctrine by stating:
Ordinarily, a party may not discover documents and tangible things that are
prepared in anticipation of litigation or for trial by or for another party or its
representative (including the other party’s attorney, consultant, surety,
indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), 5 those materials
may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1); 6 and
(ii) the party shows that it has substantial need for the materials to
prepare its case and cannot, without undue hardship, obtain their
substantial equivalent by other means.

5

Rule 26(b)(4) deals with expert witnesses.

6

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s
claim or defense and proportional to the needs of the case, considering the importance of the issues at stake
in the action. The amount in controversy, the parties’ relative access to relevant information, the parties’
resources, the importance of the discovery in resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not
be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1).

6

Id. “The party asserting a work product privilege as a bar to discovery must prove the
doctrine is applicable . . . . A mere allegation that the work product doctrine applies is
insufficient.” Grace United Methodist Church, 451 F.3d at 668-69 (quoting Resolution Tr.
Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir. 1995)).
Discussion
A. Standing
Although Oxy does not challenge Texas Brine’s right to object to the subpoena
duces tecum served on Frontier, decisions applying Rule 45(d)(3) require a court to
consider the movant’s standing even if it is not disputed. See, e.g., Hood v. Fiberweb, Inc.,
2010 WL 4102219, at *1 (M.D. Tenn. Oct. 18, 2010) (unpublished opinion) (“Although
the defendant has not raised the issue, as a general rule, a party does not have standing to
move to quash a subpoena issued to a third party, absent a claim of privilege.”); Herff
Jones, Inc. v. Okla. Graduate Servs., Inc., 2007 WL 2344705, at *3 n.4 (W.D. Okla. Aug.
15, 2007) (unpublished opinion); Arias-Zeballos v. Tan, 2007 WL 210112, at *1 (S.D.N.Y.
Jan. 25, 2007) (unpublished opinion); Transcor, 212 F.R.D. at 590. The Court finds that,
as a challenging party asserting privilege with respect to the materials subpoenaed, Texas
Brine has standing and is a proper party to this action.
B. Attorney-Client Privilege
The Federal Rules of Evidence provide that “in a civil case, state law governs
privilege regarding a claim or defense for which state law supplies the rule of decision.”
Fed. R. Evid. 501. In Louisiana, the attorney-client privilege is governed by Article 506
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of the Louisiana Code of Evidence, which provides protection for “confidential
communication[s] . . . made for the purpose of facilitating the rendition of professional
services to the client,” and encompasses communications made to “representatives of the
lawyer.” LA. CODE EVID. ANN. art. 506(B). Louisiana defines a “representative of the
lawyer” as “a person engaged by the lawyer to assist the lawyer in the lawyer’s rendition
of professional legal services.” LA. CODE EVID. ANN. art. 506(A)(4). Relying on this
definition, Texas Brine purports Louisiana law extends the attorney-client privilege to a
public relations firm and its agents. 7 The parties cite no Louisiana cases, and the Court
has located none, which address this specific issue. Absent controlling law from the forum,
the Court looks to other sources to analyze the extent of the privilege.
John Henry Wigmore’s classic formulation of the attorney-client privilege provides:
(1) Where legal advice of any kind is sought (2) from a professional legal
adviser in his capacity as such, (3) the communications relating to that
purpose, (4) made in confidence (5) by the client, (6) are at his instance
permanently protected (7) from disclosure by himself or by the legal adviser,
(8) except the protection be waived.

8 J. Wigmore, Evidence in Trials at Common Law § 2292, at 554 (J. McNaughton rev. ed.
1961) (emphasis omitted); see also United States v. Brown, 478 F.2d 1038, 1040 (7th Cir.
1973).

7

Specifically, Texas Brine purports that because “Altshuler was retained as Texas Brine’s counsel,
and Frontier was retained as a representative of Texas Brine, as well as [Texas Brine’s former and current
counsel], . . . Louisiana’s attorney-client privilege extends to any communications among them.” Mot.
[Doc. No. 1] at 10.

8

Despite Texas Brine’s blanket claim of privilege, 8 the Court finds that Texas Brine
has failed to show that the services it sought from Frontier, Beyer, and Altshuler were
solely for the purposes of obtaining legal advice. 9 Conversely, the Court finds much of the
work done and advice given by Frontier, Beyer, and Altshuler to Texas Brine and its
counsel appears to fall outside the realm of legal advice, and therefore, is not protected by
the attorney-client privilege. See U.S. Postal Serv. v. Phelps Dodge Ref. Corp., 852 F.
Supp. 156, 160 (E.D.N.Y. 1994) (stating that the attorney-client privilege “attaches only to
legal, as opposed to business, services” and protects communications “made to the attorney
acting in her capacity as counsel. If the communication[s] are made to the attorney in her
capacity as a business adviser, for example, [they] ought not be privileged.”) (citations and
quotations omitted); see also In re Grand Jury Subpoena Duces Tecum, 731 F.2d 1032,
1037-38 (2d Cir. 1984); United States v. Kovel, 296 F.2d 918, 922 (2nd Cir. 1961)
(explaining that, to qualify for the privilege, the confidential communication between client
and attorney must be made for the purpose of obtaining legal, not business, advice).

8

The Court notes that Texas Brine has failed to comply with Fed. R. Civ. P. 45(e)(2)(A) requiring
a person moving to quash a subpeona under the claim of privilege to “(i) expressly make the claim; and (ii)
describe the nature of the withheld documents, communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the parties to assess the claim.” A review
of Texas Brine’s Motion reveals that its objections are conclusory and do not provide detailed information
about the requested documents that would allow the Court to more fully assess the claim.
9

For example, Frontier provided business advice to Texas Brine regarding “emergency
management, state and local government relations, community relations, . . . and media consulting.” Mot
[Doc. No. 1] at 5. Further, through Beyer and Altshuler, Frontier routinely conferred with Texas Brine and
its counsel “to discuss issues related to the [s]inkhole response and how Texas Brine’s interactions with the
media may affect . . . its position with the State and local governments.” Id. at 6.

9

Therefore, the Court denies Texas Brine’s Motion as to attorney-client privilege, absent a
specific showing of the legal nature of each withheld communication.
C. Work Product Doctrine
As with the attorney-client privilege, the work product doctrine does not protect
written materials to and from a public relations firm or its agents regarding business, as
opposed to legal, advice. See Bloomingburg Jewish Educ. Ctr. v. Vill. of Bloomingburg,
New York, 171 F. Supp. 3d 136, 142 (S.D.N.Y. 2016) (“public relations advice, even if it
bears on anticipated litigation, [generally] falls outside the ambit of protection of the socalled ‘work-product’ doctrine embodied in Rule 26(b)(3)”) (citations and quotations
omitted); see also United States v. United Shoe Mach. Corp., 89 F.Supp. 357, 359 (D.
Mass. 1950) (“communication[s] [that] neither invite nor express any legal opinion . . . ,
but [merely] involve[] the . . . soliciting or giving of business advice, [are] not privileged”).
Additionally, an attorney’s non-litigation activity confers no work product protection. See
F. H. Krear & Co. v. 19 Named Trs., 90 F.R.D. 102, 103 (S.D.N.Y. 1981). Therefore, the
Court finds that much of the communication between Frontier, Beyer, Altshuler, and Texas
Brine is not protected by the work product doctrine, absent a specific showing of the legal
nature of each withheld communication, and that it was specifically created in anticipation
of litigation.
Conclusion
The Court reaches the conclusions contained herein based upon the business nature
of Texas Brine’s relationship with Frontier, Beyer, and Altshuler, and finds that Texas
10

Brine’s conclusory, blanket assertions of privilege are insufficient to quash the subpoena
duces tecum. The Court further finds that a privilege log is required concerning any
communications or materials that do qualify for protection. At a minimum, Texas Brine’s
privilege log should “describe the nature of the documents, communications, or tangible
things not produced or disclosed . . . in a manner that, without revealing information itself
privileged or protected, will enable other parties to assess the claim.” Fed. R. Civ. P.
26(b)(5)(A)(ii); see also Wildearth Guardians v. U.S. Forest Serv., 713 F. Supp. 2d 1243,
1266 (D. Colo. 2010) (quoting Carbajal v. Lincoln Beneficial Life Co., 2007 WL 3407345,
at *3 (D. Colo. Nov. 13, 2007) (requiring party claiming protection to identify “the author
or origin of the document; any documents or materials attached [thereto]; all recipients . .
. including addressees and persons or entities receiving copies; the date of origin . . . ; and
a description [of] the contents . . . in sufficient detail as to reveal why [the document] is
subject to the asserted privilege”)).
IT IS THEREFORE ORDERED that Texas Brine’s Motion [Doc. No. 1] is
GRANTED IN PART and DENIED IN PART. With respect to the eight classes of
subpoenaed documents, the Court orders as follows: (1) Frontier is not required to produce
these documents as the request is overly broad; (2)-(5) Frontier shall produce these
documents subject to privilege screening and production of a log consistent with Fed. R.
Civ. P. 26(b)(5)(A); (6) Frontier shall produce these documents; (7) Frontier shall produce
these documents subject to privilege screening and production of a log consistent with Fed.

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R. Civ. P. 26(b)(5)(A); and (8) Frontier shall produce these documents. All production
shall take place within thirty days of the date of this Order.
IT IS SO ORDERED this 7th day of March, 2017.

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