United States District Court, W.D. Oklahoma
MILES-LAGRANGE, UNITED STATES DISTRICT JUDGE.
the Court is plaintiffs' Motion to Compel Production of
Documents, filed December 8, 2017. On December 22, 2017,
defendant filed its response, and on December 29, 2017,
plaintiffs filed their reply. Based upon the parties'
submissions, the Court makes its determination.
move this Court to enter an order finding that defendant
erred and misapplied the attorney-client privilege and work
product doctrine for all documents on its initial Rule 26
privilege log (“First Log”) and compelling
defendant to produce all of those documents on the First Log,
with the exception of those documents for which it asserts
attorney-client privilege and the only authors and recipients
identified are Halliburton employees and a Halliburton
in-house or retained counsel. Plaintiffs assert that within
the First Log, defendant asserted attorney-client protection
for 1, 022 documents of which less than 20 involve
communications solely between defendant and its counsel.
Plaintiffs further assert that defendant asserts either
attorney-client or work product protection for hundreds of
documents that its independent contractor, SAIC Energy,
Environmental & Infrastructure, LLC, formerly known as
The Benham Companies, LLC (collectively “SAIC”),
drafted and received internally. Plaintiffs contend that
defendant has incorrectly utilized Rule 26 to protect
documents that SAIC drafted or possessed and that these
documents pertain to defendant's efforts to address its
contamination of the local aquifer, i.e., work done in the
ordinary course of business. Plaintiffs also contend that
defendant's regulatory compliance with Oklahoma law and
its subsequent compliance with its Consent Order agreement
with the Oklahoma Department of Environmental Quality
(“ODEQ”) are regulatory, business requirements
unrelated to litigation. Plaintiffs further contend that
these documents do not reflect defendant's counsel's
legal strategies and defendant did not cause them to be
drafted in anticipation of litigation.
asserts that the challenged documents are protected by the
work product doctrine and/or the attorney-client privilege.
Defendant states that after it discovered the potential for
offsite perchlorate contamination, the site investigation
became the responsibility of defendant's counsel, who
advised defendant in connection with adversarial regulatory
proceedings with the ODEQ and in anticipation of third-party
litigation. Defendant asserts that the documents at issue on
the First Log were prepared by or sent to SAIC, an
environmental consulting firm that was assisting counsel in
advising defendant how to deal with ODEQ in these
proceedings, and that decisions about how defendant should
proceed in its dealings with ODEQ have been made with the
guidance and advice of defendant's in-house and outside
counsel since May 2011. Defendant, therefore, contends that
documents generated by defendant's environmental
consultants, including SAIC, relating to work performed at
the direction of counsel in connection with the defense of
the ODEQ regulatory proceeding under the Consent Order are
clearly work product and privileged.Further, defendant contends
that this Court should exercise its discretion and deny
plaintiffs' motion because they unreasonably and without
justification waited until after the close of discovery to
file their motion.
carefully reviewed the parties' submissions, the Court,
in its discretion, finds that it is appropriate to consider
plaintiffs' motion to compel ever though said motion was
filed after the discovery deadline. The Court finds that the
issues raised in plaintiffs' motion are significant and
plaintiffs' motion is not so untimely as to warrant
denying the motion on the basis of untimeliness.
Additionally, the Court finds that the most prudent approach
to addressing plaintiffs' motion to compel would be to
globally address defendant's claims of work product
protection and attorney-client privilege, as no specific
documents have been submitted to this Court for in camera
review. If after receiving the instant order the parties are
unable to agree as to the production of certain documents set
forth on the First Log, the parties shall notify the Court
and submit the disputed documents for an in camera review.
Defendant's claims of work product protection
case based on diversity, such as the instant case, federal
law governs claims of work product protection. See
Frontier Refining, Inc. v. Gorman-Rupp Co., Inc., 136
F.3d 695, 702 n.10 (10th Cir. 1998). The work product
doctrine originated in the United States Supreme Court case,
Hickman v. Taylor, 329 U.S. 495 (1947). In 1970, the
Supreme Court adopted Federal Rule of Civil Procedure
26(b)(3), thereby codifying the work product doctrine. Rule
26(b)(3) provides, in pertinent part:
(3) Trial Preparation: Materials.
(A) Documents and Tangible Things. Ordinarily, 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).
But, subject to Rule 26(b)(4), those materials may be
(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.
(B) Protection Against Disclosure. If the court orders
discovery of those materials, it must protect against
disclosure of the mental impressions, conclusions, opinions,
or legal theories of a party's attorney or other
representative concerning the litigation.
Fed. R. Civ. P. 26(b)(3).
Accordingly, a party seeking work product immunity under Rule
26(b)(3) must establish that the materials are (1)
“documents and tangible things;” (2)
“prepared in anticipation of litigation or for
trial;” (3) “by or for another party or by or for
that other party's representative.” Feldman v.
Pioneer Petroleum, Inc.87 F.R.D. 86, 88 (W.D. Okla.
1980) (quoting 8 Charles Alan Wright, Arthur R. Miller &
Richard L. Marcus, Federal Practice and Procedure § 2024
(3d ed. 1998)). . . . Rule 26(b)(3) also incorporates the
two-tier protection of work product implicit in
Hickman. The discovering party may overcome work
product protection of “documents and tangible
things” if it establishes a “substantial
need” for the materials and an inability “without
undue hardship [to] obtain their substantial equivalent of
the materials by other means.” Fed.R.Civ.P. 26(b)(3).
However, the Rule instructs that “the mental
impressions, conclusions, opinions, or legal theories”