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Texas Brine Company, LLC v. Dow Chemical Co.

United States District Court, E.D. Louisiana

November 21, 2017

TEXAS BRINE COMPANY, LLC, ET AL.
v.
DOW CHEMICAL COMPANY, ET AL.

         SECTION: “N” (1)

          KURT D. ENGELHARDT JUDGE

          ORDER AND REASONS

          Janis van Meerveld United States Magistrate Judge

         On November 1, 2017, the Court ordered certain documents be produced for in camera review to determine whether such documents were properly designated as privileged. In conjunction with their in camera submission, Plaintiffs revised their privilege log and filed a Motion to Maintain Privilege over Documents Produced in camera. (Rec. Doc. 165). For the following reasons, the Motion to Maintain Privilege is GRANTED in part and DENIED in part.

         Background

         This lawsuit concerns the alleged encroachment of a solution mining cavern (known as Dow #18) onto property that was owned by plaintiff Texas Brine Company, LLC (“Texas Brine”), and is now owned by plaintiff Louisiana Salt, LLC (“Louisiana Salt” and with Texas Brine, the “Plaintiffs). Dow #18 is (or was during the relevant period) owned, operated and/or leased by the defendants The Dow Chemical Company, Dow Hydrocarbons & Resources, LLC, and Clifton Land Corporation (collectively, “Dow”). The Plaintiffs allege damages in excess of $100 million.

         Several discovery issues came before this Court, including Dow's challenge to the Plaintiffs' privilege log entries. On November 1, 2017, this Court ordered certain privilege log entries were sufficient to determine that the documents were privileged, certain documents were clearly not privileged, some privilege log entries required further detail, and some documents over which the Plaintiffs had asserted the attorney-client privilege should be produced to the Court for in camera review. This order addresses the last category of documents.

         Law and Analysis

         1. Privileged Materials

         “[T]he attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice.” Hodges, Grant & Kaufmann v. U.S. Gov't, Dep't of the Treasury, I.R.S., 768 F.2d 719, 720 (5th Cir. 1985). The purpose of the privilege:

is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being fully informed by the client.

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). For a communication to be protected under the privilege, the proponent “must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original). Communications by the lawyer to the client are protected “if they would tend to disclose the client's confidential communications.” Hodges, 768 F.2d at 720. “The burden of demonstrating the applicability of the privilege rests on the party who invokes it.” Id.

         Determining whether the primary purpose of a communication with an attorney was to provide or receive legal advice can be complicated when the communication involves in-house counsel because these attorneys may serve in multiple roles (including non-legal).[1] “[C]ommunications by a corporation with its attorney, who at the time is acting solely in his capacity as a business advisor, [are not] privileged, nor are documents sent from one corporate officer to another merely because a copy is also sent to counsel.” Equal Employment Opportunity Comm'n v. BDO USA, L.L.P., No. 16-20314, 2017 WL 5494237, at *4 (5th Cir. Nov. 16, 2017). (citations and quotations omitted). Further, “a document that simply transmits a document to other individuals without more does not garner the protection of the attorney-client or work product privilege.” Freeport-McMoran Sulphur, LLC v. Mike Mullen Energy Equip. Res., Inc., No. CIV.A. 03-1496, 2004 WL 1299042, at *6 (E.D. La. June 4, 2004).

The test for the application of the attorney-client privilege to communications with legal counsel in which a mixture of services are sought is whether counsel was participating in the communications primarily for the purpose of rendering legal advice or assistance. Therefore, merely because a legal issue can be identified that relates to on-going communications does not justify shielding ...

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