Sand Storage, LLC v. Trican Well Service, L.P. et al

Filing 208

MEMORANDUM OPINION ON PLAINTIFF'S OPPOSED MOTION TO COMPEL PRODUCTION OF DOCUMENTS CONTAINED IN DEFENDANT'S PRIVILEGE LOG granting in part and denying in part 193 Motion for Discovery.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SAND STORAGE, LLC,
Plaintiff,
VS.
TRICAN WELL SERVICE, L.P., et al,
Defendants.

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CIVIL ACTION NO. 2:13-CV-303

MEMORANDUM OPINION ON PLAINTIFF’S OPPOSED
MOTION TO COMPEL PRODUCTION OF DOCUMENTS
CONTAINED IN DEFENDANT’S PRIVILEGE LOG
Pending

is

Plaintiff’s

Opposed

Motion

for

Discovery.

(D.E.

193).1

Plaintiff/Counter-Defendant Sand Storage, LLC (“Sand Storage”) seeks to compel the
production of forty documents listed in the privilege log of Defendant/Counter-Plaintiffs
Trican Well Service, L.P. and Trilib Management, LLC (collectively “Trican”).

After a

hearing on April 27, 2015, and having considered the motion, response, reply, applicable
law, and after having done a thorough in camera review of the documents at issue, the
motion is GRANTED in part and otherwise denied for the reasons set forth below.
It is ORDERED that on or before Friday, May 1, 2015, Counsel for Trican will
deliver to Sand Storage the documents which correspond to entries 412, 42, 43, 44, 45,
and 46 in its Third Amended Privilege Log (D.E. 195-2). This order compelling

1

This case was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636 for case management,
including making recommendations as to all dispositive motions. (D.E. 62).
2
The Court may have omitted ordering the disclosure of item 41 during the hearing on April 27, 2015. However,
upon review, item 41 should be produced by Trican and is purposefully included in this order.

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production shall be stayed upon Trican’s filing of any objection and motion for review by
the District Judge and shall remain stayed until a ruling by the District Judge.
It is further ORDERED that the Clerk shall file under seal the documents which
correspond to the following entries of Trican’s Third Amended Privilege Log (D.E. 1952): 31, 32, 33, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,
60, 61, 62, 63, 64, 65, 66, 70, 81, 82, 98, 99, 100, 101, 102, 103, and 104.3
I.

BACKGROUND
As previously noted, the undersigned Magistrate Judge is familiar with the case

having been involved with resolving and ruling on numerous pretrial motions, discovery
disputes and dispositive motions which are among the 203 docket entries in this noncomplex relatively straight forward contract dispute.

A recitation of the facts and

procedural history is unnecessary, however, a summary of matters relevant to the current
discovery dispute is appropriate.
Counsel for Sand Storage have argued at almost every turn that counsel for Trican
have acted in bad faith or otherwise behaved unethically in this litigation. Such is not the
case. In fact, it is counsel for Sand Storage who have more than tested the patience of the
Court with their confrontational approach to this litigation. To date, counsel for Sand
Storage have filed thirty motions, most of which have been contested and have required
considerable time of the Court. (D.E. 12, 20, 21, 29, 30, 32, 35, 39, 53, 60, 89, 90, 108,
3

For purposes of an in camera review of documents relevant to the pending motion, Trican provided the
undersigned with a binder containing each of the items listed in its privilege log. Trican did not limit the production
to the undersigned Magistrate Judge to the contested items. However, there is no need to preserve the record on
matters which are not in dispute. Therefore, the unchallenged items will not be filed under seal and the binder will
be returned to Trican’s counsel in its entirety.

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112, 113, 114, 120, 126, 129, 133, 134, 139, 158, 169, 170, 180, 181, 193, 196, 200,
203).
Many of these motions involved matters which could have been resolved without
the intervention of the Court. For example, Sand Storage filed a motion to compel
mediation and a motion for sanctions (D.E. 30) after counsel for Sand Storage walked out
of the mediation. Counsel for Sand Storage was unhappy with Trican’s designated
corporate representative for purposes of mediation. Sand Storage’s reasons for walking
out of the mediation bordered on being frivolous and Sand Storage is fortunate Trican did
not pursue sanctions. Sand Storage also required Trican to file defensive motions which
should have been resolved without court intervention.

For example, Sand Storage

unilaterally noticed the deposition of one of Trican’s in house counsel who was on
emergency medical maternity leave because she had given birth to her child prematurely.
(D.E. 63). Sand Storage also unilaterally noticed the deposition of Trican employee Brad
Brooks who was scheduled to be out of the country for his tenth anniversary. (D.E. 40).
Having spent too much time on these matters, the undersigned is not going to
rehash each of the discovery motions, emergency motions, objections and other matters
needlessly filed by Sand Storage. However, in almost every motion, response and reply
filed by Sand Storage, counsel have attempted to sell their theory of the case and version
of the facts to the Court in unnecessarily lengthy motions, replies and surreplies which
fail to set forth the issues with clarity.4 Sand Storage has pursued a strategy where it
4

Sand Storage’s most recent motion is its Supplemental Motion Regarding the Deposition of Forrest Gordon (D.E.
203) filed just last Saturday, April 25, 2015. The motion essentially amounts to a motion for reconsideration of
matters previously ruled on and it fails to raise matters which alter the Court’s analysis on the issues. In similar

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appears intent on attempting to wear its opponent down through the prolific and
protracted filing of contested motions.
Regarding the present motion, Sand Storage originally challenged Trican’s
privilege log in Sand Storage’s motion to take the deposition of Trican’s in-house counsel
Forrest Gordon. (D.E. 180). During a hearing on March 31, 2015, the undersigned
ordered the parties to confer on outstanding issues relating to Trican’s privilege log and
to attempt to resolve their disputes. Trican had previously amended their privilege log in
an attempt to resolve the objections raised by Sand Storage. Sand Storage was ordered to
file a motion regarding any unresolved and outstanding privilege log issues by April 15,
2015. (D.E. 190).
In the present motion, Sand Storage identifies its remaining objections to Trican’s
Third Amended Privilege Log. (D.E. 193). Sand Storage seeks to compel the production
of documents it maintains are not privileged. The documents at issue are listed in
Trican’s Third Amended Privilege Log (D.E. 195-2) and are referred to according to their
respective log entry number. The issues relevant to the current dispute are whether
communications made by or to Trican’s in-house counsel are privileged under the
attorney client privilege and whether certain documents are protected work product of
Trican’s in house counsel.
The privilege log numbers for the disputed documents are as follows: 31, 32, 33,
40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63,

form, on April 27, 2015, Sand Storage filed a notice that it is requiring proof of authenticity of 95 of Trican’s
exhibits, the necessity of which will be addressed by the District Judge or undersigned in due course.

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64, 65, 66, 70, 81, 82, 98, 99, 100, 101, 102, 103, and 104. In addition to considering the
motions, responses, replies, and respective exhibits, the undersigned Magistrate Judge has
personally conducted a careful and time intensive in camera review of the contested
documents which are filed under seal.
II.

APPLICABLE LAW
The Court may compel discovery pursuant to Federal Rule of Civil Procedure

37(a)(1). The rule requires notice to the affected person and certification the parties have
conferred in an effort to obtain the discovery without court action. Id.
however, should not compel the production of privileged matters.

The Court,

Fed. R. Civ. P.

26(b)(1). The parties agree that Texas law governs the attorney client privilege analysis
in this diversity action. See Fed. R. Evid. 501.
The Texas Rules of Evidence define the attorney client privilege as follows:
A client has a privilege to refuse to disclose and to prevent any other
person from disclosing confidential communications made for the
purpose of facilitating the rendition of professional legal services to
the client:
(A) between the client or a representative of the client and the client's
lawyer or a representative of the lawyer;
(B) between the lawyer and the lawyer's representative;
(C) by the client or a representative of the client, or the client's lawyer
or a representative of the lawyer, to a lawyer or a representative of a
lawyer representing another party in a pending action and concerning
a matter of common interest therein;
(D) between representatives of the client or between the client and a
representative of the client; or

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(E) among lawyers and their representatives representing the same
client.
Tex. R. Evid. 503(b).
The party claiming the attorney client privilege has the burden to establish its
applicability.

Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, 768

F.2d 719, 721 (5th Cir. 1985)(citations omitted). In a corporate setting, the privilege
extends to any employee of the corporation who, on instructions from a superior,
communicates with counsel inside or outside of the corporation. Upjohn v. United States,
449 U.S. 383, 394–95 (1981). However, the privilege attaches only to communications
made for the purpose of giving or obtaining legal advice or services, not business or
technical advice or management decisions. Id.; Navigant Consulting, Inc. v. Wilkinson,
220 F.R.D. 467, 473 (N.D. Tex. 2004).
Federal law governs the analysis of the work product privilege in diversity cases.
Dunn v. State Farm Fire & Cas. Co., 927 F.2d 869, 875 (5th Cir. 1991). Under Federal
Rule of Civil Procedure 26(b)(3)(A):
[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) [ (expert
discovery) ], those materials may be discovered if:
(i) they are otherwise discoverable under Rule 26(b)(1) [i.e. are
within the general scope of discovery]; 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.

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Fed. R. Civ. P. 26(b)(3)(A).
“The burden of establishing that a document is work product is on the party who
asserts the claim, but the burden of showing that the materials that constitute work
product should nonetheless be disclosed is on the party who seeks their production.”
Hodges, Grant & Kaufmann 768 F.2d at 721 (citations omitted). “The work product
doctrine focuses only on materials assembled and brought into being in anticipation of
litigation. Excluded from work product materials ... are ‘(m)aterials assembled in the
ordinary course of business, or pursuant to public requirements unrelated to litigation....’”
United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982)(citations omitted).
III.

ANALYSIS
The undersigned Magistrate Judge has reviewed each of the disputed items in

camera and has considered the briefing, exhibits and arguments of counsel. With the
exception of items 41, 42, 43, 44, 45 and 46, the documents sought by Sand Storage are
clearly privileged under either the attorney client or work product privilege.

The

documents which correspond to numbers 31, 32, 33, 40, 47, 48, 49, 50, 51, 52, 53, 54, 55,
56, 61, 62, 63, 64, 65, 66, 70, 81, 82, 98, 99, 100, 101, and 102 of Trican’s Third
Amended Privilege Log (D.E. 195-2) are communications between Trican’s in house
counsel or their representative (paralegal) and Trican employees. Each communication
was intended to be confidential. Each communication was made for the purpose of
giving or obtaining legal advice or services, not business or technical advice or
management decisions. Trican has not waived the privilege as to any of these
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communications.

As such, the communications are protected by the attorney client

privilege and are not subject to discovery. Sand Storage’s Motion to Compel items 31,
32, 33, 40, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 61, 62, 63, 64, 65, 66, 70, 81, 82, 98, 99,
100, 101, and 102 is DENIED.
With regard to the documents corresponding to numbers 57, 58, 59, 60, 103 and
104 of Trican’s Third Amended Privilege Log, each of these documents is protected by
the work product privilege. Fed. R. Civ. P. 26(b)(3)(A). Each of these documents was
prepared by a Trican employee or representative (including its attorneys) in anticipation
of litigation. Items 103 and 104 are also protected by the attorney client privilege. Items
103 and 104 are notes from a Trican senior managers meeting at which Trican counsel
participated and reported on ongoing litigation. The documents also include reports from
Trican employees to Trican counsel about certain legal matters. The relevant
communications contained in items 103 and 104 were intended to be confidential and
were made for the purpose of giving or obtaining legal advice or services. As such, these
communications are protected by the attorney client privilege. To the extent items 103
and 104 contain information not protected by the attorney client privilege or work
product privilege, that information is unrelated to the instant litigation. This potentially
unprivileged information is neither relevant to any claim or defense of Sand Storage and
its disclosure does not appear reasonably calculated to lead to the discovery of admissible
evidence. Fed. R. Civ. P. 26(b)(1). Sand Storage’s Motion to Compel items 57, 58, 59,
60, 103 and 104 is DENIED.

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Items 41, 42, 43, 44, 45 and 46 are not protected by the attorney client privilege.5
Each of these documents is an email communication between Trican senior managers. In
each of these communications, a Trican in house attorney was copied or cc’d the
communication.

Trican maintains that its attorney being copied on a message, as

opposed to being the sender or primary recipient, does not preclude its claiming of a
privilege. There may very well be instances of such communications being privileged,
however, such is not the case here. Upon an in camera review of items 41, 42, 43, 44, 45
and 46, the undersigned finds that none were made for the purpose of facilitating the
rendition of professional legal services. Therefore, Sand Storage’s Motion to Compel
production of items 41, 42, 43, 44, 45 and 46 is GRANTED.
IV.

CONCLUSION
For the reasons stated above, Plaintiff’s Opposed Motion for Discovery. (D.E.

193) is GRANTED in part and otherwise DENIED as set forth below.
It is ORDERED that on or before Friday, May 1, 2015, Counsel for Trican will
deliver to Sand Storage the documents which correspond to entries 41, 42, 43, 44, 45, and
46 in its Third Amended Privilege Log (D.E. 195-2).

Should Trican seek a review of

this Order to the District Judge, this Order compelling the production shall be stayed
upon the filing of such review by Trican and shall remain stayed until a ruling by the
District Judge.

5

Trican’s Third Amended Privilege Log only raises attorney client privilege “AC” as to items 41, 42, 43, 44, 45 and
46.

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Sand Storage’s motion to compel items 31, 32, 33, 40, 47, 48, 49, 50, 51, 52, 53,
54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 70, 81, 82, 98, 99, 100, 101, 102, 103,
and 104 is DENIED.
It is further ORDERED that the Clerk shall file under seal the documents which
correspond to the following entries of Trican’s Third Amended Privilege Log (D.E. 1952): 31, 32, 33, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59,
60, 61, 62, 63, 64, 65, 66, 70, 81, 82, 98, 99, 100, 101, 102, 103, and 104.
ORDERED this 29th day of April, 2015.

___________________________________
Jason B. Libby
United States Magistrate Judge

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