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Firefighters' Retirement System v. CITCO Group Ltd.

United States District Court, M.D. Louisiana

January 8, 2018

FIREFIGHTERS' RETIREMENT SYSTEM, ET AL.
v.
CITCO GROUP LIMITED, ET AL. ID Document Description Author Recipient CC Other Participants Privilege Claimed ID Document Description Author Recipient CC Other Participants Privilege Claimed ID Document Description Author Recipient CC Other Participants Privilege Claimed ID Document Description Author Recipient CC Other Participants Privilege Claimed

          RULING AND ORDER ON MOTION TO COMPEL PRODUCTION OF DOCUMENTS WITHHELD PURSUANT TO PLAINTIFFS' PRIVILEGE LOG

          ERIN WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Compel Production of Documents Withheld Pursuant to Plaintiffs' Privilege Log (the “Motion to Compel”) filed by defendants, Citco Technology Management, Inc. (“CTM”), Citco Banking Corporation N.V. (“Citco Banking”), Citco Fund Services (Cayman Islands) Limited (“CFS Cayman”), and The Citco Group Limited (“Citco Group”) (collectively, the “Citco Defendants”).[1] Plaintiffs, Firefighters' Retirement System

         (“FRS”), Municipal Employees' Retirement System of Louisiana (“MERS”), and New Orleans Firefighters' Pension & Relief Fund (“NOFF”) (collectively, “Plaintiffs”), have filed an Opposition to the Motion to Compel.[2] For the reasons set forth herein, the Motion to Compel is GRANTED IN PART AND DENIED IN PART.

         I. Background

         By their instant Motion to Compel, [3] the Citco Defendants originally asked this court to compel production of certain documents listed on Plaintiffs' privilege log. The Citco Defendants classified documents to be compelled into three exhibits[4] and argued that Plaintiffs should either be ordered to produce “the documents for which they are unable or unwilling to provide adequate descriptions or, in the alternative, to submit a revised privilege log….”[5] In response to the Motion to Compel, Plaintiffs filed an opposition asserting that they: (1) produced 46 documents “either prior to or concurrent with the filing of this motion, ” (2) produced 22 redacted documents; and (3) of the remaining 91 documents at issue “to the extent possible, ” sent revised entries to the Citco Defendants on November 20, 2017.[6] Plaintiffs asserted that all of the redacted portions of documents on their privilege log, and the 91 remaining documents were “privileged because the document is between an employee of the Louisiana Funds and the indicated attorneys which either seek or give legal advice or opinions directly related to the Fletcher litigation.”[7] In conjunction with their opposition, Plaintiffs provided charts setting out Plaintiffs' employees as well as attorneys employed by Campbells or Diamond McCarthy.[8]

         The Motion to Compel was discussed during the December 12, 2017 status conference. During the conference, counsel for the Citco Defendants stated that after reviewing Plaintiffs' most recent revisions to Plaintiffs' privilege log, the Citco Defendants believed the descriptions for approximately 15-25 of the entries were still deficient. The Citco Defendants agreed to send a letter to Plaintiffs' counsel on December 13, 2017 setting forth the entries which the Citco Defendants believed to be deficient, and Plaintiffs were to revise those entries or inform the Citco Defendants that no further revisions would be made by Friday, December 15, 2017. The court ordered the parties to submit a joint letter on December 18, 2017 setting out the entries on Plaintiffs' privilege log that are still at issue. On December 18, 2017, the parties submitted the requested letter.[9] Rather than clarifying which entries were still at issue, the December 18, 2017 correspondence only muddied the waters because the parties “disagree[d] about what entries remain at issue.” While the Citco Defendants submitted a new Exhibit A setting out 19 entries purportedly at issue, Plaintiffs contended that only three of those entries remained contested.

         On December 20, 2017, the undersigned issued a Notice and Order explaining that because the new Exhibit A supplements and modifies the Citco Defendants' Motion to Compel, all entries as set forth in R. Doc. 507, Exhibit A were considered to still be at issue.[10] In the Notice and Order, the court requested additional information in order to rule on the Motion to Compel. Specifically, the court explained that the entries still at issue referenced “Mourant” or “Mouvant, ”[11] “MTBA, ” and “UCBI.” Other entries improperly listed the author as “LA Funds” or “NOFF employee.” See, XL Specialty Ins. Co. v. Bollinger Shipyards, Inc., Civil Action No. 12-2071, 2014 WL 295053, ay * 6 (E.D. La. Jan. 27, 2014) (ordering defendant to either produce documents or provide a supplemental log as to 12 entries that identified only entities in the “to” and “from” column); Chemtech Royalty Associates, L.P. v. U.S., Civil Action Nos. 05-944, 06-258, 07-405, 2009 WL 854358, at * 5 (M.D. La. March 30, 2009) (finding privilege log that, inter alia, listed the author of certain documents as “‘Dow Chemical Company, ' which is an entity and not an individual” was insufficient and requiring plaintiff to provide a revised privilege log). Accordingly, the court ordered Plaintiffs to submit a revised Exhibit A that explained all acronyms used therein (including “MTBA” and “UCBI”) as well as the role of “Mourant”/“Mouvant” and which revised, if possible, entries naming “LA Funds” or “NOFF employee” as author.[12]

         On December 29, 2017, Plaintiffs submitted their revised log.[13] By cover letter attached to that revised log, Plaintiffs explained that “‘MBTA' is the Massachusetts Bay Transportation Retirement Fund” and asserted that MBTA, along with FRS, MERS, and NOFF were the “ultimate victims of this fraud.”[14] Plaintiffs further explained that “UCBI is United Community Banks, Inc. and Mourant Ozannes is the Cayman law firm who represented the Fletcher entities in the spring of 2012 (after the Louisiana Funds had hired Campbells). Specifically, Plaintiffs hired Campbells to communicate directly with Mourant Ozannes as opposing counsel.”[15] Finally, Plaintiffs explained that “[a]s to the entries where a document was authored by “LA Funds, ” the document was created jointly by Steven Stockstill, Bob Rust, and Ritchie Hampton. The redacted portion of the document describes the contents of conversations held by one of the three gentlemen, if not all three as representatives of their organizations.”[16] As set forth in Plaintiffs' December 29, 2017 submission, log entry numbers 979, 1180, 1184, 1220, 1726, 1985, 2231, 2508, 2518, 2582, 2601, 2756, 3004, 3025, 3028, 3033, 3386, 3389, and 3392 remain at issue by the Citco Defendants' Motion to Compel.[17] Plaintiffs have claimed both the attorney client and work product privileges protect certain documents (or portions of documents) from disclosure.[18]

         II. Law and Analysis

         A. Legal Standards

          i. Attorney Client Privilege

         Rule 501 of the Federal Rules of Evidence requires a federal court sitting in diversity to apply the appropriate state's law concerning the scope and application of the claimed attorney-client privilege. The Louisiana Code of Evidence states:

A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication ... 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....

La. Code Evid. art. 506(B). Under Louisiana law, the party asserting the privilege has the burden of proving its applicability. Smith v. Kavanaugh, Pierson & Talley, 513 So.2d 1138, 1143 (La. Sept. 9, 1987).

         In Equal Employment Opportunity Commission v. BDO USA, LLP, 2017 WL 5494237 (5th Cir. Nov. 16, 2017), the Fifth Circuit left the initial determination regarding whether the privilege log was sufficient to the district court on remand, and set forth some general rules regarding the assertion of privilege. The court explained that “[f]or 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.'” Id. at * 3 (citing United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)). See also, Swoboda v. Manders, 2016 WL 2930962, at * 5, n. 41 (M.D. La. May 19, 2016) (recognizing that not all communications between an attorney and his client are privileged, “‘[f]or example, no privilege attaches when an attorney performs investigative work in the capacity of an insurance claims adjuster, rather than as a lawyer.'”) (citing In re Allen, 106 F.3d 582, 602 (4th Cir. 1997)); U.S. v. Davis, 636 F.2d 1028, 1043 (5th Cir. 1981) (explaining that work papers produced by an attorney in the course of preparing client's tax returns were not privileged “because although preparation of tax returns by itself may require some knowledge of the law, it is primarily an accounting service. Communications relating to that service should therefore not be privileged, even though performed by a lawyer.”). Likewise, the attorney client privilege does not extend to materials assembled in the ordinary course of business, or which provide purely factual data. See, U.S. v. Louisiana, Civil Action No. 11-470, 2015 WL 4619561, at * 5 (M.D. La. July 31, 2015).[19]

         ii. Work Product Privilege

         Pursuant to Fed.R.Civ.P. 26(b)(3)(A), “[o]rdinarily, 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.)” (emphasis added). However, such materials may be discovered if “(i) they are otherwise discoverable under Rule 26(b)(1); and (ii) 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.” Id. “The party who is seeking the protection of the work-product doctrine has the burden of proving that the documents were prepared in anticipation of litigation.” Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013).

         “It is not dispositive that some documents were not prepared by attorneys. Rule 26(b)(3) protects from discovery documents prepared by a party's agent, as long as they are prepared in anticipation of litigation.” Naquin v. UNOCAL Corp., 2002 WL 1837838, at *7 (E.D. La. Aug. 12, 2002). See also, Southern Scrap Metal Co. v. Fleming, 2003 WL 21474516, at * 6 (E.D. La. June 18, 2003) (“The [work product] doctrine protects not only materials prepared by a party, but also materials prepared by a co-party, or representative of a party, including attorneys, consultants, agents, or investigators.”); Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013) (same). However, “[t]he work-product doctrine does not protect materials assembled in the ordinary course of business, pursuant to regulatory requirements, or for other non-litigation purposes.” Colony Ins. Co. v. NJC Enterprises, LLC, 2013 WL 1335737, at *2 (M.D. La. April 1, 2013). While “[w]ork product protection extends to documents and tangible things that are prepared in anticipation of litigation by a party or its representative, [the privilege] does not extend to the underlying relevant facts or to documents assembled in the ordinary course of business.” Williams v. United States Environmental Services, LLC, 2016 WL 617447, at *4 (M.D. La. Feb. 16, 2016).

         B. Sufficiency of Plaintiffs' Privilege Log

         The party claiming the privilege bears the burden of proof, and this is a highly fact-specific inquiry. BDO, 2017 WL 5494237, at * 3. Ambiguities with respect to whether the elements of a privilege claim have been met are construed against the proponent of the privilege. Id. Once the privilege is established, the burden shifts to the party seeking the documents to prove an applicable exception. Id. Pursuant to Local Civil Rule 26(c):

A party withholding information claimed privileged or otherwise protected must submit a privilege log that contains at least the following information: name of the document, electronically stored information, or tangible things; description of the document, electronically stored information, or tangible thing, which description must include each requisite element of the privilege ...

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