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Frickey v. Kobelco Stewart Bolling, Inc.

United States District Court, E.D. Louisiana

March 5, 2015



JOSEPH C. WILKINSON, Jr., Magistrate Judge.

The court previously deferred the motion of Dow Chemical Company (a dismissed defendant) and defendant Union Carbide Corporation (collectively "Dow") to quash the subpoena duces tecum served on Dow Chemical Company by defendant Kobe Steel, Ltd. Record Doc. Nos. 55. As ordered, Dow submitted to me for in camera review the subject "Root Cause Investigation" report. Dow and Kobe filed supplemental memoranda. Record Doc. Nos. 60, 61. Having considered the submissions and arguments of the parties, IT IS ORDERED that the motion is DENIED for the following reasons.

Union Carbide is a wholly owned subsidiary of former defendant Dow Chemical Company. Farrell Frickey was badly burned while working for a contractor at Union Carbide's facility in Taft, Louisiana. Kobe manufactured the equipment that allegedly caused Frickey's injuries. Frickey brought the instant action in Louisiana state court alleging claims under Louisiana tort law. After defendants removed the matter to this court based on diversity jurisdiction, Union Carbide filed cross-claims and counterclaims that also arise under Louisiana law.

In opposing Kobe's subpoena for the Root Cause Investigation report, Dow argues that the report is protected from discovery by the attorney-client privilege. Dow does not contend that the report is work product protected by Fed.R.Civ.P. 26(b)(3), but argues only that the report is privileged under Louisiana Code of Evidence article 506. Louisiana evidence law governs privilege questions in this action brought under Louisiana substantive law. Fed.R.Evid. 501; Exxon Mobil Corp. v. Hill, 751 F.3d 379, 381 (5th Cir. 2014); Int'l Ins. Co. v. RSR Corp., 426 F.3d 281, 299 n.26 (5th Cir. 2005).

Dow has submitted the affidavit of Karen Eddlemon, Lead Counsel for Dow Chemical Company's Louisiana operations, in support of its motion. Record Doc. No. 60-1. Eddlemon provides legal services to Union Carbide pursuant to a master services agreement between Union Carbide and Dow Chemical Company. She states that Root Cause Investigations are "internal investigations of events, problems, and occurrences" that "are performed for many reasons, including to determine the root cause of a problem reported by a customer, a near-miss event, and following major events or-as in the above-captioned case-severe injuries where litigation is anticipated." Id. at ¶¶ 8-9. She admits that Root Cause Investigations "are standard business practice" for "run-ofthe-mill matters that occur during the day-to-day operation of facilities" and asserts that such standard investigations "are not typically managed by counsel because litigation is not anticipated." Id. at ¶ 10.

However, according to Eddlemon, "when severe injuries or events occur, onsite personnel contact Dow and Union Carbide's internal legal counsel (Dow Legal'), as soon as possible, and [she] (or an attorney under [her] direction) will travel to the site to determine whether litigation is a possibility." Id. at ¶ 11. If the attorney "determines [that] litigation is likely, Dow Legal coordinates and manages the investigation" and follows certain confidentiality protocols that Eddlemon describes in paragraph 12 of her affidavit, which "are diligently followed to preserve Dow and Union Carbide's privilege in light of expected litigation." Id. at ¶¶ 12, 13.

Eddlemon avers that she was notified "shortly after" Frickey was burned. She traveled to the facility to learn the details of the accident. She says she determined that litigation was likely to occur based on those details, the severity of Frickey's injuries and "her experience with incidents of this sort." Id. at ¶ 15. She states that the protocols described in paragraph 12 were implemented and the Root Cause Investigation at issue was performed in accordance with them. Information about the incident was collected, reviewed, analyzed and reduced to a PowerPoint presentation, id. at ¶ 21, which is the 18-page document that I have reviewed in camera. Bates Nos. UCC/Frickey In Camera Review 000001-000018.

Eddlemon states that she and Dow Legal were involved in all phases of the investigation and that she "supervised meetings, oversaw the investigative process, approved written documents, and in sum, oversaw preparation of the conclusions set forth in the" Root Cause Investigation report at issue. Id. at ¶ 22. She avers that the investigation was "closed to third parties" and that "complete confidentiality was maintained throughout" it. Id. at ¶¶ 23-24. She states that the Root Cause Investigation "Report and legal conclusions regarding the cause of the September 13, 2012 accident were prepared and ultimately relied upon by Dow and Union Carbide management and Dow Legal to respond to the incident, make recommendations, prepare the matter for trial, and in general, perform the regular functions of legal counsel." Id. at ¶ 25.

Finally, Eddlemon avers that the Root Cause Investigation "was performed in order to determine what legal position and actions were necessary to protect Dow and Union Carbide's interests. The conclusions and evaluation made by Dow and Union Carbide's counsel have provided the basis for [their] legal position in the abovecaptioned litigation." Id. at ¶¶ 26-27.

Dow, as the party resisting discovery by asserting a privilege, bears the burden of proof sufficient to substantiate its privilege claims and cannot rely merely on a blanket assertion of privilege. United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002); In re Santa Fe Int'l Corp., 272 F.3d 705, 710 (5th Cir. 2001).

Louisiana's Code of Evidence defines the attorney-client privilege as follows.

A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication, whether oral, written, or otherwise, made for the purpose of facilitating the rendition of professional legal services to the client, as well as the perceptions, observations, and the like, of the mental, emotional, or physical condition of the client in connection with such a communication, when the communication is: (1) Between the client or a representative of the client and the client's lawyer or a representative of the lawyer.

La. Code Evid. art. 506(B) (emphasis added).

"This Article, however, does not include any information [that the lawyer] may have gotten by reason of his being such legal adviser.'" Id. official comment (i), 1992 revisions. Thus, "it is axiomatic that the attorney-client privilege only protects disclosure of confidential communications between the client and his attorney; it does not protect underlying facts." Consol. Health Plans, Inc. v. Principal Performance Group, Inc., No. 02-1230, 2003 WL 1193663, at *5 (E.D. La. Mar. 14, 2003) (citing United States v. Edwards, 39 F.Supp.2d 716, 735 (M.D. La. 1999); Boyd v. St. Paul Fire & Marine Ins. ...

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