FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:16-CV-01026-D)
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.
K. Beecher (Bethany W. Kristovich with him on the briefs),
Munger, Tolles & Olsen LLP, Los Angeles, California, for
T. Steiner (Anton J. Rupert with him on the briefs), Rupert
& Steiner, PLLC, Oklahoma City, Oklahoma, for
LUCERO, BALDOCK, and HARTZ, Circuit Judges.
BALDOCK, Circuit Judge.
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.
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. 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
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. 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.
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).
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
Id. (emphasis added).
Brine filed a timely notice of appeal. 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 ...