Adhikari et al v. KBR, Inc. et al

Filing 194

MEMORANDUM AND ORDER granted in part 163 MOTION to Compel Production of Withheld Documents. Documents 4561 and 5442 are privileged and protected fromdiscovery. Documents 10168 and 10169 are not privileged and must be produced. (Signed by Magistrate Judge Dena Hanovice Palermo) Parties notified.(cfelchak, 4)

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United States District Court
Southern District of Texas

ENTERED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

KRISHNA PRASAD ADHIKARI, et
al.,
Plaintiffs,
v.
KBR, INC., et al.,
Defendants.

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December 30, 2020
David J. Bradley, Clerk

CASE NO. 4:16-CV-2478

MEMORANDUM AND ORDER
Pending before the Court is Plaintiffs’ Motion to Compel (ECF NO. 163)
KBR, Inc., et al., (“Defendants”) to produce documents Defendants claim are
protected under the attorney-client privilege. The Court held a hearing on
December 8, 2020 and ruled on all but four documents, reserving its ruling after
further consideration in light of the arguments of counsel, case law, and evidence.
See Order, ECF No. 192. Having reviewed the evidence and case law, Plaintiffs’
motion is granted in part and denied in part.
I.

BACKGROUND

Plaintiffs are five Nepali men who allege they were taken against their will to
Iraq during the height of the Iraq War, where they were forced to provide manual
labor for KBR. First Am. Compl., ECF No. 155-2, ⁋⁋ 1-2. Plaintiffs allege, inter
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alia, that KBR is liable to them for negligence, negligent hiring, and negligent
supervision under Texas law. Id. ⁋⁋ 263-82. Plaintiffs allege KBR breached a duty
it owed them by contracting with and failing to protect them from Daoud & Partners,
a Jordanian company that tapped into a network of labor brokers to supply KBR with
trafficked workers, including Plaintiffs. Id. ⁋⁋ 95-96.
The Parties are in a discovery dispute concerning the scope of the attorneyclient privilege. Plaintiffs seek the production of four documents that involve KBR’s
internal communications regarding its responses to media inquiries. KBR opposes
production asserting the documents are protected by the attorney-client privilege.
II. COMMUNICATIONS SEEKING AND GIVING LEGAL ADVICE
ARE PROTECTED UNDER THE ATTORNEY CLIENT PRIVILEGE
‘“The attorney-client privilege is one of the oldest recognized privileges for
confidential communications.’” Miniex v. Houston Housing Authority, No. 4:17-cv00624, 2019 WL 2524918, *3 (S.D. Tex. March 1, 2019) (quoting Swidler & Berlin
v. United States, 524 U.S. 399, 403 (1998)). “Its purpose is to encourage ‘full and
frank communication between attorneys and their clients and thereby promote
broader public interests in the observance of law and administration of justice.’” Id.
(quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).
The elements of attorney-client privilege are: “(1) a confidential
communication; (2) made to a lawyer or his subordinate; (3) for the primary purpose
of securing either a legal opinion, legal services, or assistance in a legal proceeding.”
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SEC v. Microtune, Inc., 258 F.R.D. 310, 315 (N.D. Tex. 2009) (citing United States
v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)). The party asserting the privilege
bears the burden to demonstrate how each communication satisfies all the elements
of the privilege. Id. (citing Hodges, Grant & Kaufmann v. United States, 768 F.2d
719, 721 (5th Cir. 1985)).
The court narrowly construes the privilege to the bounds necessary to protect
these principles because the “assertion of privileges inhibits the search for truth.” Id.
(quoting Navigant Consulting, Inc. v. Wilkinson, 220 F.R.D. 467, 477 (N.D. Tex.
2004)). The privilege is limited to the disclosures made to an attorney that are
“necessary to obtain informed legal advice which might not have been made absent
the privilege.” Id. (quoting Fisher v. United States, 425 U.S. 391, 403 (1976)).
Therefore, “the privilege does not protect documents and other communications
simply because they result from an attorney-client relationship.” Id. (citing Navigant
Consulting, 220 F.R.D. at 477) (emphasis added).
‘“There is no presumption that a company’s communications with counsel are
privileged.’” Miniex, 2019 WL 2524918, at *4 (quoting EEOC v. BDO USA, L.L.P.,
876 F.3d 690, 696 (5th Cir. 2017). ‘“[A] confidential communication between client
and counsel is privileged only if it is generated for the purpose of obtaining or
providing legal assistance ....”’ Id. (alterations in original) (citations omitted). If a
lawyer is acting in a non-legal capacity, the attorney-client privilege does not apply.
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See id. (“[C]ommunications by a corporation with its attorney, who at the time is
acting solely in his capacity as a business advisor, [are not] privileged.”). Where
there is a dual purpose in making the communication, the court should consider the
context to glean the “manifest purpose” of the communication. Id. (citations
omitted).
A. KBR Submitted Evidence in Support of Its Assertion of Privilege
KBR submitted an affidavit of its former Vice President of Legal, Chris
Heinrich, who stated that KBR routinely received media inquiries, and its responses
could create potential litigation exposure. Henrich Aff., ECF No. 173-1, ⁋11. He
further testified that his responsibility was to help KBR navigate those questions to
mitigate that exposure. Id. He required KBR’s Communications Department to
obtain clearance from the Legal Department before responding to any media
inquiries. Id. ⁋12. In reviewing such media inquiries, Henrich testified that his “sole
purpose” was to assess any legal issues and minimize any potential risks. Id.
Heinrich further testified that starting in mid-2004, KBR received media
inquiries regarding alleged misconduct among the thousands of foreign
subcontractors hired to work on its United States government contract worldwide.
He testified that the legal issues raised potential litigation exposure, the division of
responsibility between KBR and the United States government, interpretation of its

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code of conduct, and the scope of investigative and corrective action KBR could
take. Id. ⁋14.
With regard to Document 4561, Heinrich testified that Melissa Norcross, an
employee in the Communications Department, contacted him for the primary
purpose of obtaining legal advice on KBR’s response to certain press inquiries. Id.
⁋15. Melissa Norcross provided an affidavit testifying to the same. Norcross Aff.,
ECF No. 173-3, ⁋ 5. The Court’s determines that the email is protected under the
attorney client privilege. It is an email from an employee to counsel and other
employees with responsibility for the issues raised, seeking advice on how to
respond to a media inquiry. While there is no doubt there is a mixed purpose to the
email, it clearly raises legal issues and seeks legal advice. The email along with the
supporting affidavit satisfy KBR’s burden of proof to maintain the privilege. Miniex,
2019 WL 2524918, at *4.
Regarding Document 5442, Heinrich testified that he provided legal advice to
Heather Brown’s draft responses to a media inquiry that she requested in Document
5441. His advice concerned contractual and other legal measures KBR pursued. The
Court finds that the only relevant paragraph is paragraph 11. The other paragraphs
are not relevant to the litigation. Paragraph 11 is privileged. It seeks legal advice on
responding to a media inquiry and Heinrich provides that advice. See Alomari v.
Ohio Dept. of Public Safety, 626 Fed. App’x. 558, 570-71 (6th Cir. 2015) (advising
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a client on how to respond to media inquiries has important legal implications).
Thus, this document need not be produced.
Finally, regarding Documents 10168 & 10169, Heinrich testified that Karolyn
Stuver, KBR’s Communications Director, requested his legal advice on addressing
a media inquiry and Jill Pettibone, KBR’s Vice President of Operational Excellence,
discusses and follows up on the request for legal advice. Henrich Aff., ECF No. 1731, ⁋22. The Court finds that this document is not privileged. Although Ms. Stuver
asks for help responding to the media inquiry with input from legal or subcontracts,
Ms. Pettibone responds, directing her to Sharon Steele, Procurement Director, for
the response. On the face of the document, no legal advice is given. The affidavit is
insufficient to cure this deficiency. These two documents must be produced. Miniex,
2019 WL 2524918, at *4 (no presumption communications with counsel are
privileged, must involve obtaining or providing legal advice).
Conclusion
Plaintiff’s Motion to Compel, ECF No. 163, is GRANTED IN PART and
DENIED IN PART. Documents 4561 and 5442 are privileged and protected from
discovery. Documents 10168 and 10169 are not privileged and must be produced.
Signed on December 29, 2020, at Houston, Texas.

_____________________________
Dena Hanovice Palermo
United States Magistrate Judge
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