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Vintage Assets, Inc. v. Tennessee Gas Pipeline Company, L.L.C.

United States District Court, E.D. Louisiana

June 29, 2017

VINTAGE ASSETS, INC., ET AL.
v.
TENNESSEE GAS PIPELINE COMPANY, L.L.C., ET AL.

         SECTION: "H"(5)

          ORDER AND REASONS

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         Before 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.

         The 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 follows.

         I. The Arguments of the Parties

         Defendants 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).

         Plaintiffs 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 Defendants.

         The 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 document.

         II. The Applicable Privileges

         A. Attorney-Client Privilege

         The 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).[1] 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 communication is:
(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 interest.
(4) Between representatives of the client or between the client and a representative of the client.
(5) Among lawyers and their representatives representing the same client.
(6) Between representatives of the client's lawyer.

         It is 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).

         The 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 provides:

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 ...

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