United States District Court, W.D. Oklahoma
LISA T. LEBLANC, Plaintiffs,
TEXAS BRINE COMPANY, LLC., Defendants.
TIMOTHY D. DeGIUSTI UNITED STATES DISTRICT JUDGE.
the Court is Texas Brine Company, LLC's (“Texas
Brine”) Motion to Stay Pending Appeal [Doc. No.
Occidental Chemical Corporation (“Oxy”) has
opposed the Motion, which is fully briefed.
both Fed.R.Civ.P. 62(c) and Fed. R. App. P. 8(a), “the
factors regulating the issuance of a stay are . . .: (1)
whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the
public interest lies.” Hilton v. Braunskill,
481 U.S. 770, 776 (1987). “The first two factors . . .
are the most critical. It is not enough that the chance of
success on the merits be better than negligible.”
Nken v. Holder, 556 U.S. 418, 434 (2009) (internal
quotation marks omitted).
a strong showing that it is likely to succeed on the merits,
Texas Brine must demonstrate that in its March 7, 2017 Order
[Doc. No. 48] this Court “committ[ed] a legal error or
relie[d] on clearly erroneous factual findings, ” or
that there existed “no rational basis in the evidence
for” granting in part and denying in part Texas
Brine's Motion to Quash. Trentadue v. F.B.I.,
572 F.3d 794, 806 (10th Cir. 2009) (quoting Breaux v. Am.
Family Mut. Ins. Co., 554 F.3d 854, 866 (10th Cir.
2009); see also Wood v. FBI, 432 F.3d 78, 82 (2d
Cir. 2005) (acknowledging that a district court's ruling
regarding discovery is reviewed for abuse of discretion).
Motion, Texas Brine argues that the Court erred by
misconstruing the scope of Louisiana's Attorney-Client
Privilege when identifying many of the services provided by
Frontier International Group, LLC (“Frontier”) as
“outside the realm of legal advice.” Mot. [Doc.
No. 63] at 5 (quoting Order [Doc. No. 48] at
9);see also La. Code Evid. Ann. art.
506(A)(4). However, Texas Brine provides no legal
support in its Motion for its argument that the Court's
interpretation of Louisiana's Code is “impossibly
narrow”. Id. Instead, Texas Brine criticizes
the Court's reliance on established federal authority.
Id. at 5-6. Conversely, Oxy provides legal support for
its Response in opposition, and the Court finds that law
persuasive. See Resp. [Doc. No. 66] at 15 (quoting
Ferrand v. Schedler, CIV. A. 11-926, 2012 WL
3016219, at *3 (E.D. La. July 23, 2012) (“[F]ederal
common law and Louisiana statutory law are materially similar
concerning the attorney-client privilege.”);
Soriano v. Treasure Chest Casino, Inc., No. 95-3945,
1996 WL 736962, at *2 (E.D. La. Dec. 23, 1996) (“[T]he
Court finds that common law and Louisiana statutory law are
materially similar . . . in regards to attorney-client
privilege.”)). Although Texas Brine attempts to
distinguish these cases, the Court finds that Texas Brine
still fails to demonstrate that the Court committed any legal
or factual error in granting in part and denying in part its
Motion to Quash.
Brine also fails to show that it will be irreparably injured
absent a stay. “To constitute irreparable harm, an
injury must be certain, great, actual and not
theoretical.” Heideman v. S. Salt Lake City,
348 F.3d 1182, 1189 (10th Cir. 2003) (internal quotation
marks omitted). Citing In re Perrigo Co., 128 F.3d
430 (6th Cir. 1997),  Texas Brine argues that, absent a stay, it
will be required to disclose privileged information.
Id. at 7. However, the Court's Order did not
require disclosure of any privileged materials. See
Order [Doc. No. 48] at 11-12. Specifically, the Court ordered
Texas Brine to produce relevant documents “subject to
privilege screening and production of a log consistent with
Fed.R.Civ.P. 26(b)(5)(A).” Id. Further, and as
noted by Oxy, “Texas Brine cites no authority
suggesting that irreparable harm will result if it is forced
to provide a privilege log for privileged documents.”
Resp. [Doc. No. 66] at 12.
Brine also fails to establish that a stay will not result in
substantial injury to Oxy, stating merely “there is no
trial date or discovery deadlines in the underlying
action.” Mot. [Doc. No. 63] at 9. Acknowledging the
absence of a trial schedule in the federal litigation, Oxy
counters that “discovery obtained in one case [has been
used] in all cases” arising out of the sinkhole
occurrence, at both the federal and state levels, and
“cases pending in Louisiana state court do have trial
dates beginning this fall.” Resp. [Doc. No. 66] at 13
(providing examples of “depositions that have been
cross-noticed across all sinkhole cases” (Id.
at 13 n.10)). Therefore, Oxy continues, “it is
imperative that [Oxy] receives the discovery requested from
Frontier now” because “[g]iven the size and
complexity of Texas Brine's ‘response cost'
claim, it is not feasible for [Oxy] to receive the discovery
it needs at the last minute.” Resp. [Doc. No. 66] at
12-13. The Court agrees. In light of the fact that Oxy has
yet to receive any discovery materials (even those beyond the
scope of the instant Motion) or a privilege log from Frontier
(as initially required by Fed.R.Civ.P. 45, and later ordered
by the Court pursuant to Fed.R.Civ.P. 26), the Court finds
substantial injury could result from the requested stay.
Texas Brine has failed to establish that public interest lies
in its favor. It is true that public interest is served where
attorney-client privilege is protected. See Mot.
[Doc. No. 63] at 9 (citing Landry Scherer v. Latter,
No. Civ. A. 96-4189, 1998 WL 205417, at *2 (E.D. La. Apr. 27,
1998)). However, as discussed above, the Court's Order
[Doc. No. 48] does not require the production of protected
information, but rather relevant documents “subject to
privilege screening and production of a log consistent with
Fed.R.Civ.P. 26(b)(5)(A).” Order [Doc. No. 48] at
11-12. Further, public interest is also served when litigants
are afforded “the right . . . to proceed in a timely
manner toward an adjudication of their claims.” Resp.
[Doc. No. 66] at 15 (quoting Sisters of Mercy Health Sys.
v. Kula, CIV-05-0115-F, 2006 WL 2090090, at *4 (W.D.
Okla. July 25, 2006)). The sinkhole occurred in 2012, and
“the federal-court action has been pending for nearly
that long.” Resp. [Doc. No. 66] at 13. Additionally,
the time for production has already passed, and Texas Brine
has failed to produce a privilege log or any relevant,
non-privileged materials. Therefore, the Court finds that the
public interest will be best served in this case by the
production of documents as ordered.
above stated reasons, the Court finds that Texas Brine has
failed to establish any of the four factors supporting a
stay, and therefore, DENIES Texas Brine's Motion to Stay
Pending Appeal [Doc. No. 63].