United States District Court, E.D. Louisiana
VINTAGE ASSETS, INC., ET AL.
TENNESSEE GAS PIPELINE COMPANY, L.L.C., ET AL.
ORDER AND REASONS
MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Compel Production of Documents
Listed in Plaintiffs' Privilege Log and Alternative
Motion for In Camera Inspection of Documents filed
by Defendants, Tennessee Gas Pipeline Company, L.L.C.,
Southern Natural Gas Company, L.L.C., High Point Gas
Transmission, L.L.C., and High Point Gas Gathering, L.L.C.
(collectively, "Defendants"). (Rec. doc. 96).
Plaintiffs filed an Opposition Memorandum (rec. doc. 119), to
which was attached a supplemental privilege log (rec. doc.
119-2) intended to address certain shortcomings in
Plaintiffs' original log (rec. doc. 119-1) that were
pointed out by Defendants in their Motion.
Court received and reviewed the subject documents in
camera, held a lengthy hearing on the motion and
thereafter took the matter under advisement. The Court has
carefully considered all of the pleadings in the record and
the arguments of counsel and has re-reviewed the subject
documents in camera and rules on the motion as
The Arguments of the Parties
generally seek the production of 28 documents listed in both
Plaintiffs' original privilege log and their supplemental
log. Generally, Defendants make three related arguments.
First, none of the documents can be subject to any privileges
because they were not shared between parties and their
clients and, according to the dates of the documents listed
in the logs, they could not have been created for the purpose
of rendering legal services. Second, Defendants complain that
the vagueness of the document descriptions set forth in the
original log make it impossible for them to determine if the
documents are subject to any privilege. Third, “because
the Plaintiffs themselves have admitted they have no personal
knowledge of the facts underlying this lawsuit, Defendants
believe some of the documents alleged by Plaintiffs to be
‘privileged' may actually contain discoverable and
non-privileged factual information which must be
produced.” (Rec. doc. 96-1 at p. 2).
counter first with the observation that Defendants failed to
cite a discovery response that was inadequate or a deposition
question that was unanswered as a basis for their motion.
They go on to note that Plaintiffs responded twice to
Defendants' Request for Production No. 19, which sought:
“all Documents relating to any facts relevant or
material to any of Your claims, allegations or contentions in
this case, including all Documents relied on when filing suit
on behalf of Plaintiff” by providing some 1, 500-plus
documents. (Rec. doc. 119 at p. 4). It is apparent to the
Court that it is not the 1, 500 documents produced but the 28
listed in the privilege logs that are of concern to
Plaintiffs go on to argue that every document on the two logs
is subject to both the attorney-client privilege and the
work-product privilege because they are all either
communications directly between counsel of record (Mr. Braud)
and his clients; between what the Court will call
“family counsel” (Mr. Inabnett) and his
“client” family members; or between future
co-litigants seeking to “consult with an attorney
together as a group with common interests seeking common
representation. . . .” (Rec. doc. 119 at p. 11).
Finally, Plaintiffs argue that Defendants have not
demonstrated “substantial need” to penetrate the
work-product privilege they claim over every withheld
The Applicable Privileges
parties agree that, because this lawsuit was removed on the
basis of diversity jurisdiction, the Plaintiff's claims
of attorney-client privilege are governed by Louisiana law.
See Exxon Corp. v. St. Paul Fire & Marine Ins.,
903 F.Supp. 1007, 1008-09 (E.D. La. 1995). Article 506(B) of
the Louisiana Code of Evidence describes the attorney-client
privilege under Louisiana law:
B. General rule of privilege. 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
(1) Between the client or a representative of the client and
the client's lawyer or a representative of the lawyer.
(2) Between the lawyer and a representative of the lawyer.
(3) By the client or his lawyer, or a representative of
either, to a lawyer, or representative of a lawyer, who
represents another party concerning a matter of common
(4) Between representatives of the client or between the
client and a representative of the client.
(5) Among lawyers and their representatives representing the
(6) Between representatives of the client's lawyer.
axiomatic that the proponent of the privilege bears the
burden of establishing its applicability. In re Vioxx
Products Liab. Litig., 501 F.Supp.2d 789, 799 n. 15
(E.D. La. 2007). Even where the attorney-client privilege is
established by a preponderance of the evidence, however, that
privilege can be waived under certain circumstances. See,
e.g., In Re Shell Oil Refinery, 812 F.Supp. 658, 662-63
(E.D. La. 1993).
client is the holder of the privilege; therefore, the power
to waive the privilege is the client's alone. In this
regard, Article 502(A) of the Louisiana Evidence Code
A person upon whom the law confers a privilege against
disclosure waives the privilege if he or his predecessor
while holder of the privilege voluntarily discloses or
consents to disclosure of any significant part of the
privileged matter. This ...