United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, Jr., Magistrate Judge.
Before the court is BASF Corporation's Motion for In Camera Inspection of Redacted Documents. (R. Doc. 55). Through the motion, BASF Corporation ("BASF") requested the court to conduct an in camera inspection of certain redacted documents produced by Man Diesel & Turbo North America, Inc. ("Man Diesel") and, after conducting such an inspection, to order production of those documents without redactions. Accordingly, BASF has moved the court to both (1) conduct an in camera inspection of certain redacted documents and (2) issue an order compelling the production of those documents without redactions. Man Diesel opposes an order compelling the production of the documents to be submitted for in camera inspection to BASF without redactions. (R. Doc. 62).
The key dates leading up to this litigation are not disputed. The underlying incident- the failure of BASF's C-300 Compressor allegedly as a result Man Diesel's faulty replacement of certain mechanical seals-occurred on December 30, 2011. (R. Doc. 62-2 at 1). On January 18, 2012, BASF placed Man Diesel on notice of a potential claim for the failure of the C-300 Compressor. (R. Doc. 62-2 at 1). On August 16, 2012 BASF provided Man Diesel with a draft copy of its Petition in an effort to reach a settlement agreement and possibly engage in mediation. (R. Doc. 55-5 at 135-37). On December 21, 2012, BASF initiated the instant litigation for breach of contract and negligence in state court and the action was subsequently removed on January 17, 2013. (R. Doc. 1).
After a period of discovery, BASF filed the instant motion on September 29, 2014. (R. Doc. 55). On November 25, 2014, the court granted the motion in part and required the submission of approximately 400 pages of documents for in camera inspection regarding documents redacted on the basis of attorney-client privilege, the work product doctrine, or both. (R. Doc. 66). On November 26, 2014, counsel for Man Diesel informed the court that Rafe Porrier, the individual believed to have served as "in-house counsel" for Man Diesel, "was a disbarred lawyer and thus not an attorney for the purposes of invoking the attorney-client privilege." (R Doc. 68 at 3). The court then held a status conference on December 1, 2014, in which the parties agreed that only 34 pages of documents, which Man Diesel asserts are protected pursuant to the work product doctrine, remain in dispute. (R. Doc. 68 at 1-2). On December 2, 2014, defense counsel provided the undersigned with "redacted" and "un-redacted" versions of 34 pages of emails for in camera inspection. The parties have not provided the court with any additional briefing on the application of the work product doctrine to the documents submitted for in camera inspection.
The following documents submitted for in camera inspection are attached to BASF's motion in "redacted" form: MAN DIESEL 874-877, 881-887, 912-916. (R. Doc. 59-5). The remaining documents submitted for in camera inspection are not attached to BASF's motion at all: MAN DIESEL 1728-1731, 1751-1753, 2143, 2213-2222. Although BASF did not specifically seek to "compel" production of these documents through its filed motion, the court will consider whether to order those documents produced in light of the parties' agreement to submit them for in camera inspection.
II. Law and Analysis
The work product doctrine is a matter of federal procedural law in diversity cases. See N. Am. Specialty Ins. Co. v. Iberville Coatings, Inc., No. 99-859, 2002 WL 34423316, at *3 (M.D. La. Mar. 22, 2002). The work-product doctrine is codified in Rule 26(b)(3) of the Federal Rules of Civil Procedure. "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)." Fed.R.Civ.P. 26(b)(3)(A). The moving party may discover relevant information, however, if 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." Fed.R.Civ.P. 26(b)(3)(A)(ii).
The party asserting protection under the work product doctrine has the burden of proving that the documents were prepared in anticipation of litigation. Lasalle Bank N.A. v. Mobile Hotel Props., LLC, No. 03-2225, 2004 WL 1238024, at *2 (E.D. La. June 3, 2004). In the Fifth Circuit, while litigation need not necessarily be imminent, the primary motivating purpose behind the creation of the document must be to aid in possible future litigation. United States v. Davis, 636 F.3d 1028, 1040 (5th Cir. 1981). The "[f]actors that courts rely on to determine the primary motivation for the creation of a document include the retention of counsel and his involvement in the generation of the document and whether it was a routine practice to prepare that type of document or whether the document was instead prepared in response to a particular circumstance." Gator Marshbuggy Excavator L.L. C. v. M/V Rambler, No. 03-3220, 2004 WL 1822843, at *3 (E.D. La. Aug. 12, 2004). Although the involvement of an attorney is not dispositive, it is a "highly relevant factor... making materials more likely to have been prepared in anticipation of litigation." Carroll v. Praxair, Inc., No. 05-307, 2006 WL 1793656, at *2 (W.D. La. Jun. 28, 2006).
A. Documents Produced in Full
Man Diesel has provided several documents for in camera review that are not redacted in either the "redacted" or "un-redacted" versions submitted to the court. These documents include MAN DIESEL 1731, 2143, and 2213-2222. As confirmed at a telephone conference held on February 9, 2015, Man Diesel is no longer claiming work product protection over these documents. Similarly, emails appearing on MAN DIESEL 886-887 involving counsel for BASF were submitted to the court without redactions in both the "redacted" and "un-redacted" versions. These documents are clearly not work product and have apparently been provided by counsel for Man Diesel to provide context for later internal emails between Man Diesel employees.
The court need not order the foregoing documents and/or emails produced because they have already been provided to BASF.
B. Documents with Duplicative Versions Already Produced in Full
Man Diesel has produced redacted documents labeled MAN DIESEL 884, 886, 915, 1730, and 1752. The substance of those emails, however, appear un-redacted as attachments to BASF's Motion to Compel. Simply put, the ...