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Texas Brine Company, LLC v. Occidental Chemical Corporation

United States Court of Appeals, Tenth Circuit

January 19, 2018

TEXAS BRINE COMPANY, LLC, Defendant-Appellant,
v.
OCCIDENTAL CHEMICAL CORPORATION, Defendant-Appellee. FRONTIER INTERNATIONAL GROUP, LLC, Witness. TEXAS BRINE COMPANY, LLC, Defendant,
v.
OCCIDENTAL CHEMICAL CORPORATION, Defendant-Appellee. FRONTIER INTERNATIONAL GROUP, LLC, Witness - Appellant.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:16-CV-01026-D)

          Martha Y. Curtis, Sher Garner Cahill Richter Klein & Hilbert, LLC, New Orleans, Louisiana (James M. Garner, Peter L. Hilbert, Jr., Kevin M. McGlone, Sher Garner Cahill Richter Klein & Hilbert, LLC, New Orleans, Louisiana, and Gerald L. Hilsher, Julia A. Palmer, McAfee & Taft, APC, Tulsa, Oklahoma, on the briefs), for Defendant-Appellant.

          Jeremy K. Beecher (Bethany W. Kristovich with him on the briefs), Munger, Tolles & Olsen LLP, Los Angeles, California, for Defendant-Appellee.

          Geren T. Steiner (Anton J. Rupert with him on the briefs), Rupert & Steiner, PLLC, Oklahoma City, Oklahoma, for Witness-Appellant.

          Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

          BALDOCK, Circuit Judge.

         I.

         Defendant Texas Brine Company, LLC (Texas Brine) operates brine wells on land owned by Co-Defendant Occidental Chemical Corporation (Oxy) in Louisiana. In August 2012, a sinkhole appeared near one of these wells. After the sinkhole appeared, Texas Brine began clean-up efforts. To manage this crisis, Texas Brine consulted with others. In December 2012, Texas Brine retained Frontier International Group, LLC (Frontier), an Oklahoma-based consulting firm, for "emergency management, state and local government relations, community relations, litigation settlement strategy, and media communications." Some time later, Texas Brine retained Brooks Altshuler, an attorney and Frontier's owner, in his individual capacity to advise the company on response and remediation efforts and to negotiate with government agencies. Later, Texas Brine retained Frontier as a consulting expert for trial preparation.

         Litigation began soon after the sinkhole appeared, with multiple plaintiffs suing Texas Brine and Oxy in the Eastern District of Louisiana. In that suit, the plaintiffs alleged the negligent operation of a brine well resulted in the sinkhole and caused damage to the plaintiffs' properties. In this underlying litigation, Texas Brine filed a cross-claim against Oxy seeking indemnity for $100 million spent responding to the sinkhole crisis, $6.5 million of which Texas Brine claims is for the work Frontier performed. To verify the work Frontier performed and the cost of such work, Oxy issued a subpoena duces tecum to nonparty Frontier, requesting production of eight categories of documents related to services Frontier provided Texas Brine.[1] In response, Texas Brine filed a motion to quash the subpoena in the Western District of Oklahoma, the district where compliance is required. See Fed. R. Civ. P. 45(d)(3)(A). Proceeding under the uncontested assumption that Louisiana law applied, Texas Brine first claimed the attorney-client privilege protected the subpoenaed communications.

         In a written order, the district court granted the motion in part and denied it in part. Leblanc v. Texas Brine Co., No. 16-1026, 2017 WL 913801, at *1 (W.D. Okla. Mar. 7, 2017). In its order, the court noted that Texas Brine failed to comply with Fed.R.Civ.P. 45(e)(2)(A), which requires a person moving to quash a subpoena under the claim of privilege to "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." Instead, Texas Brine asserted a "blanket claim of privilege." Leblanc, 2017 WL 913801, at *4. Only in the context of Texas Brine's claim of a blanket privilege did the court address whether Louisiana's attorney-client privilege statute extends the privilege to a public relations firm and its agents.[2] As Louisiana courts have not addressed this exact issue, the court looked to Wigmore's definition of attorney-client privilege, which protects "legal advice." Id. (quoting 8 J. Wigmore, Evidence in Trials at Common Law § 2292, at 554 (J. McNaughton rev. ed. 1961)). Without a privilege log before it, the court concluded that much of the work Frontier performed for Texas Brine did not constitute "legal advice" and, thus, was not protected by the attorney-client privilege. The court finished its discussion on attorney-client privilege by stating: "the Court denies Texas Brine's Motion as to attorney-client privilege, absent a specific showing of the legal nature of each withheld communication." Id. (emphasis added).

         Texas Brine also argued the work product doctrine governed the subpoenaed communications. The court reached a similar conclusion regarding this argument, stating the work product doctrine does not protect a public relations firm's written materials regarding business advice or an attorney's non-litigation activity. Again, the court emphasized much of the communications were not protected, "absent a specific showing of the legal nature of each withheld communication, and that it was specifically created in anticipation of litigation." Id. at *5 (emphasis added).

         The district court concluded its order by again emphasizing "Texas Brine's conclusory, blanket assertions of privilege are insufficient to quash the subpoena." Id. (emphasis added). The court required Texas Brine to produce a privilege log for any communications that it believed were protected. With respect to the eight categories of subpoenaed documents, the court ruled as follows: Frontier need not produce category (1) because the request was overbroad; Frontier must produce the documents requested in categories (2), (3), (4), (5), and (7) "subject to privilege screening and production of a log consistent with Fed.R.Civ.P. 26(b)(5)(A)"; and Frontier must produce the documents requested in categories (6) and (8).[3] Id. (emphasis added).

         Texas Brine filed a timely notice of appeal.[4] Texas Brine then filed a motion to stay the district court's order pending these proceedings, which the district court denied. Frontier complied with the district court's order and has, at this point, produced around 20, 000 ...


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