Gremillion v. BP Exploration & Production, Inc.

• Court: District Court, E.D. Louisiana
• Decided: April 8, 2025
• Docket: 2:22-cv-03209
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

TAMMY GREMILLION CIVIL ACTION

VERSUS NUMBER: 22-3209

BP EXPLORATION & PRODUCTION, INC., ET AL. SECTION: “A” (5)

ORDER

Before the Court is Plaintiff’s Proposed Motion to Compel Defendants’ Documents. (Rec. doc. 138). The BP Defendants oppose Plaintiff’s motion (rec. doc. 143), and Plaintiff has filed a reply. (Rec. doc. 147). Having reviewed the pleadings and the case law, the IC.o urt rBulaecsk agsr fooullnodws. Deepwater Horizon This lawsuit arises out of the well blow-out and oil spill in 2010. 1 Decedent, Jennifer L. Gremillion, was an oil response worker who worked for the BP Defendants from August to December 2010. The Complaint alleges that Decedent’s duties included recovering booms covered in oil and COREXIT – a chemical dispersant – from Barataria Bay, Louisiana, which flows into the Gulf of Mexico. (Rec. doc. 1 at 7). During the relevant times, Decedent allegedly received continuouIds. exposure to BP’s toxic substances through her clean-up and response work activities. ( ). The Complaint alleges that, due to her exposure to the oil and other toxic substances, IDde.cedent contracted and was subsequently diagnosed with Chronic Myeloid Leukemia.. ( at 8). The Complaint further alleges that Decedent’s exposure to the substances during the time she worked as a response activity worker for the oil spill was a substantial contributing cause of the aboIvde. - listed medical condition and Decedent’s untimely death on December 16, 2020. ( ). Plaintiff ultimately filed this lawsuit on September 9, 2022 pursuant to the Medical Benefits Class Action Settlement Agreement. Plaintiff, on behalf of Decedent, has now filed this motion in which she challenges

the BP Defendants’ assertion of the attorney-client and work-product privileges to withhold documents. This is the eighth in a collection of discovery motions filed by the parties in this case, many of which raised the very issues in the motion now before the ICIo. urt. L egal Standard A. The Atto rney-Client Privilege

“The attorney-client privilege protects two related, but different communications: (1) confidential communications made by a client to his lawyer for the purpose of obtaining

legal advice; and (2) any communication from an attorney to his client when made in the course of giving legal advice, wIchteetchhe-rB enodr ecnko tv . Wthaats tea Cdovnicnee citsio nbsa Bseady ouo,n I npc.rivileged communications from the client.” , No. 18- 7889, 2024 WL 247063, at *5 (E.D. La. Jan. 23, 2024) (internal citations omitted). In a corporate setting, the attorney-client privilege applies to communications with in-house counsel when the comJomliuvneti cva.t iCoonms paaress “ mGrapd. eU fSoAr, tIhnec .purpose of giving or obtaining legal advice or services.” , 340 F.R.D. 7, 26 (N.D. Tex. 2021) (enforcing attorney-client privilege protection). When a document “intertwine[s] business

and legal advice,” attorJnoeliyv-ectlient privilege protects the communication when the legal advice predominates. , 340 F.R.D. at 25-26 (internal citations omitted). Merely because a document or an email communication may relate in some way to business activities does not mean that that the primary purpose of the document or email cannot be See Culliver v. BP Expl. & Prod. one of a legal nature relating to litigation. , No. 3:21-4942, 2022 WL 19568968, at *5-6 (N.D. Fla. Oct. 13, 2022) (granting the BP Defednants’s eMeo tailosno fHoerr cau lpesr,o Itnecc.t viv. eE xoxrodne Cr oargpa.inst a party for its use of a privileged document);

, 434 F. Supp. 136, 147 (D. Del. 1977) (an incidental request for business advice “does not vitiate the attorney-client privilege.”). Moreover, who is included in an email communication and in what line (to, from, or cc) is not automatically determinative of the email’s privilege status. For example, including a non-client/third party who is a representative of the client on an email communication Fisi rneofitg ehnteorusg' hR etot. aSuysto. mv. aCtiitccaol lGy rdpe. tLetrdm. ine a document or communication is not privileged. aff'd , No. CV 13-373-SDD-EWD, 2018 WL 2323424, at *8 (M.D. La. May 22, 2018), , No. CV 13-373-SDD-EWD, 2018 WL 5993472

(M.D. La. Nov. 14, 2018) (“The attorney-client privilege is not destroyed by communications by and throughW aa srheipngretosenn-Stta.t iTvaem omf athney cEllieecn. tC roeogpa.r, dInincg. vt.h Lea .o Gbteanienriantgi nogr, rLe.Ln.Cd.ering of legal advice . . .”); , No. 17-405, 2019 WL 2092566, at *5 (M.D. La. May 13, 2019)) (“‘[w]hen agents or employees . . . participate as members of a team to provide information and documents to litigation counsel and to obtain from counsel answers to the client’s questions, with the primary purpose of effectuating counsel’s rendition of legal advice to the client, communications between the client’s legal personnel and the third-party agents are

privileged, and the privilege is not waived by the communications.’” (citation omitted)). Similarly, the inclEuslgiounez oafb aanl va.t Ctohrunrecyh o&n D awni gehmta Cilo s.olely by copy does not, alone, indicate a lack of privilege. , No. 12-1346, 2013 WL 12304667, at *1 (E.D. La. Nov. 21, 2013) (finding that even though counsel was only copied on the email Washington-St. cToammmmuanniyc aEtlieocn. sC,o otph.e communications were sufficiently privileged); , Inc. at *5 (same). Finally, there are Mnou lelexra cvt. Bwoonredfsis rhe qGuriilrle, dL .Lto.C s.how that a communication seeks or provides legal services. , No.

20-1059, 2021 WL 2822374, at *3 (E.D. La. July 7, 2021) (“The attorney-client privilege does not require that communications themselves contain substantive legal advice, nor that they request advice affirmatively. Instead, it requires that the communications be made ‘for theB p.u rposTeh oef Wobotarkin-iPnrgo ldeguaclt aPdrviivciele.’”g)e.

Federal Rule of Civil Procedure 26(b)(3)(A) provides that “a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party. . . .”. Documents “prepared in anticipation of litigation or for trial bSty.

Joarm foers aSnteovtehdeorr pinagrt yC oo. rv b. yF eomr cfoor M thaacth o. tChoe.r party’s representative” are not discoverable. , 173 F.R.D. 431, 434-35 (E.D. La. 1997) (holding that documents created after the “proper date uspeoen a lwsoh iKcahn slaitsi gCaittiyo nS. Rwya. sC or.e va. sNoincahbollys aCnotniscti.p Caote.d” were privileged and not discoverable); , No. 05-1182, 2007 WL 2127820, at *2 (E.D. La. July 25, 2007) (“This Court[] reads this rule to protect a document or tangible thing from discovery when it was prepared by or for that party or that party’s representative and was prepared in anticipation of litigation.”). Both fact work product and opinion work product are

protected under the Federal Rules. Fact work product “is any material ‘prepared in anticipation of litigation or for trial by or for another party or its representative . . . bIuctt e‘ncoht- tBheen dmeecnktal impressions, conclusions, opinionIsn orre lIengta’ll Sthyse.o &ri eCso notfr aonls aCtotorprn. eSye c.. .L .”it i g. , 2023 WL 3687427, at *6 (quoting , 693 F.2d 1235, 1240 (5th Cir. 19s8e2e )a l(svoa Jcoaltivinegt order requiring production of documents claimed to be work product)); , 340 F.R.D. at 34 (holding that the defendant properly withheld as protected work product a meeting invitation regarding ongoing

litigation). As with the attorney-client privilege, courts look to the provenance of the individual document to determine whether work-product protections apply. “To determine whether a document wasM purellpear rve.d B ‘oinn eafnisthic iGprailtli,o Ln. Lo.fC l.itigation,’ the Fifth Circuit applies the ‘primary purpose’ test.” , 2021 WL 2822374, at *1. The test provides that the work-product privilege can apply where litigation is not imminent as long as the primary motivatinSgee p iudr.psoesee a blseoh LinadS atlhlee Bcarenakt Nio.nA . ovf. Mthoeb dileo cHuomteeln Pt rwopaesr ttioe sa, iLd. Li.nC .possible future litigation. ; modified , No. 03-

2225, 2004 WL 9021U69ni, taetd * S6t a(Ete.Ds .v L. Da.a Avpisr. 23, 2004), , 2004 WL 1238024 (E.D. La. June 3, 2004) (citing , 636 F.2d 1028, 1039 (5th Cir. 1981) (concluding “that litigation need not necessarily be imminent, as some courts have suggested, as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.”)). The work-product doctrine recognizes that “attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation of trial. The doctrine protects materiaWl oporedplaanrde dv .b Ny aalgceon Ctsh feomr .t hCeo .attorney as well as those

prepared by the attorney himself.” United States , vN. oN. o0b1le-3s337, 2003 WL 22928808, at *3 (E.D. La. Dec. 8, 2003) (quoting , 422 U.S. 225 (1975)). Accordingly, the absence of an attorney on an email, or the fact that a docuSmeee nInt was not authored by an attorney, does not imply a lack of work-product protection. re Nw. Senior Hous. Corp. , 661 B.R. 345, 359 (Bankr. N.D. Tex. 2024) (“[T]he federal work product doctrine provides for protection of documents and tangible things prepared by or for a party or that party’s representative ‘in anticipation of litigation or for trial,’ whether

tIhIIo. se mLaatwer aianlsd w Aenrael ypsriespared by the attorney or by agents of the attorney.”).

Plaintiff’s challenge to the BP Defendants’ invocation of privilege involves three categories of documents: (1) documents to or from a BP Defendants’ contractor, Paul Hewett; (2) documents relating to the BP Defendants’ monitoring and sampling data; and (3) documents associated with the BP Defendants’ participation in the Operational Science Advisory Team (“OSAT”). The BP Defendants produced non-privileged documents relevant to each of these three categories but withheld others on the basis of privilege and provided

Plaintiff with a thorough privilege log. (Rec. doc. 138-4). Plaintiff contends that these categories of documents are not entitled to privilege regardless whether they contain legal advice. Plaintiff maintains that no document concerning the oil spill response can be withheld as privileged because the documents involved technical subjects, which Plaintiff describAes. as thDeo “courmdineanrtys ctoou orrs efr oofm bu tshien eBsPs bDye afenn odial cnotms’ pCaonnyt.r”a (cRtoecr., dPoacu. l1 H38ew-1e attt 12).

Paul Hewett is a former government contractor later hired by the BP Defendants, who recognize that Hewett performed both privileged and non-privileged work for them. The BP Defendants produced all non-privileged documents by Hewett to Plaintiff. At his deposition, however, Hewett specifically testified that he performed some of his work at the direction of the BP Defendants’ attorneys. (Rec. doc. 143-1 at 36, 81-82, 120). The BP Defendants withheld these documents on the ground of privilege. Plaintiff essentially maintains that Hewett’s dual role precludes any privilege protection because his work was performed in the ordinary course of business. Plaintiff concentrates on the fee agreement between Hewett and the BP Defendants,

arguing that nothing in the contract contemplated legal work. Plaintiff’s argument misses the mark. The attorney-client and work-product privileges are not controlled by the terms of a contract, but by the nature of the work performed. To determine whether the work- product privilege shields a document from production, the Court need only Sfiened S ttohfafte ltsh ve. mSBoCt iCvoamtinmgc p'nusr, pInocs.e behind its production was in “anticipation of litigation.” , 263 F.R.D. 406, 418 (W.D. Tex. 2009). Documents prepared for mixed purposes – including regulatory compliaSnecee Iann rde leVgioaxl xs tPrraotedgs.y L–ia abr.e L pitriogt.ected when legal considerations are a primary purpose. , 501 F. Supp. 2d

789, 798 (E.D. La. 2007) (“When these non-legal services are mixed with legal services it does not render the legal services any less protected by the privilege. In fact, they both are protected when they are inextricably intertwined.”). Accordingly, even had Hewett been conducting his work in the ordinary course of business, the work-product privilege would extend to any documents that were created in anticipation of litigation. Even Plaintiff recognizepsr etsheins,t ewdh teon asthtoer ncietyess ftoor ath pe rpivuirlepgoes el oogf leengtarly rteivtlieedw “[d]raft industrial hygiene analysis .” (Rec. doc. 138-1 at 14) (emphasis added). Plaintiff maintains that “[k]eeping attorneys in the loop does not make

a document privileged; sending information for attorney review does nIodt. constitute attorney-client privilege if the communications relate to non-legal activity.” ( ). But such an argument ignores reality. Day-to-day communications between a client and his attorney need not relate to “legal activity.” Indeed, that is the very purpose of retaining an attorney. Everyone in this profession knows that clients – whether they’re knowledgeable in the law or not – communicate non-legal activities and facts to their attorneys so the attorneys can determine how the information fits within their particular legal strategy. That does not

deprive the client of his or her privilege in those communications. This is not the first time that Plaintiff’s counsel has raised the argument that a non- party’s dual role precludes protection by the attorSneeeyC-culilleinvet ra vn.d B wP oErxkp-lp. r&o dPurocdt .p, Irnivci.leges, nor is it the first time that a court has rejected it. , Case No. 3:21cv4942, 2022 WL 19568968, at *6 (N.D. Fla. Oct. 13, 2022). There, in addressing whether the defendants’ retained expert’s dual purpose precluded any protection by the work-product privilege, the court held: Furthermore, the fact Brown worked for the [Unified Area Command] and provided information to the government before transitioning to [defendants’ natural resource damage assessment] work does not alter this conclusion. Courts have recognizEesds e“x[ i]Btu iisl dpeorsss iGbrlpe. ,f oIrn ca. wv.i tAnmesesr itsou rwee Ianrs t. wCoo .hats: one as a specially employed expert in anticipation of litigation and one as an ordinary witness.” , 235 F.R.D. 703, 705 (M.D. Fla. 2006) (citation omitted). Plaintiff is entitled to question Brown regarding his work for the UAC – which Plaintiff did at the July 15 deposition – but Plaintiff is not entitled to question Brown regarding the Id. NRDA work he performed for BP in anticipation of litigation.

The BP Defendants retained Hewett in anticipation of litigation to perform consulting work with the BP Defendants’ attorneys. Said work product is thus protected by the privilege. Further, the Court cannot find – on the basis of Plaintiff’s generic and conclusory argument – that the BP Defendants withheld factual data in privileged documents. The underlying breathing zone and other factual data that Plaintiff seeks has been puEbdliwc afordr yWeiasrnse ra nDdo nhaatsi obne evn. BthPe E sxupbl.j e&c tP orof de.xtensive fact, corporate, and expert discovery. 13, 2015) (noting the publicly-available data regarding the oil spill response). For the foregoiBng. reasDonosc,u tmhee Cnotsu rRt efilnadtisn tgh taot HBePw’se Mtto’sn witoorrki npgr oadnudc tS iasm pprilviinlegg Deda.t a

The second category of documents that Plaintiff seeks contain strategy discussions related to sampling and monitoring. Plaintiff argues – again – that these communications occurred in the ordinary course of business. She also contends – again – that the communications involve underlying factual information. This Court has heard these arguments before. Indeed, both this Court and the Northern District of Florida have acknowledged the privileged nature of the BP DefSeenedants’ work Cwuiltlhiv etrhird-party consultants surrounding monitoring and sampling data. Rec. doc. 89; , 2023 WL 11992401, at *3 (“BP’s work with its consultants in determining what data would be

collected, how the data would be collected, or the consultants’ analysis of the data is privileged.”). That the BP Defendants anticipated litigationC ualsli vae rresult of the oil spill is well- established and cannot seriously be challenged. , 2022 WL 19568968, at *5 (“Indeed, before Brown began such work, the United States and several states had filed civil actions against BP for natural resource damages under the OPA.”). Plaintiff argues that the BP Defendants would have engaged in sampling and monitoring whether litigation followed from the oil spill or not. This is not a serious argument – litigation against BP

following this disaster was the certainty of certainties. That inevitable litigation took many forms immediately after the spill – including personal-injury lawsuits related to alleged exposures to toxic substances. In this regard, it suffices to observe that Plaintiff is re- urging a failed argument that has already been squarely addressed by the Northern District Frassetti v. BP Expl. & Prod., Inc. of Florida District Court. opinion clarified , No. 3:21CV551, 2023 WL 4988887, at *3 (N.D. Fla. Aug. 3, 2023), , No. 3:21CV551, 2023 WL 8798101 (N.D. Fla. Sept. 6, 2023) (rejecting Plaintiff’s argument that an email was not protected by

the attorney-client privilege because the BP Defendants had a business purpose in collecting industrial hygiene data and the email primarily related to operational details, not legal advice, and finding that “[the email] contains an attorney's mental impressions regarding the statucsf . oMf avratrinio uv.s Bwaollryk'ss tPraerakm Ps laacned Hito twela &s nCoats inporepared in response to a regulatory duty.”); , 983 F.2d 1252 (3d Cir. 1993) (finding that a report commissioned by corporate counsel to test emissions was prepared in anticipation of litigation and was not routine exposure rIenc orer dD nenetcuerses aCrrye afomr OPrSoHdAs. tLoi acba. rLryit iogu. t its enforcement and other regulatory functions);

, 2012 WL 5057844, at *18 (S.D. Fla. Oct. 18, 2012) (while “advice from counsel related to the business determinations for purposes of ensuring regulatory compliance likely would not be protected by either the attorney-client or work product doctrine, when that advice is dispensed, not in the regular course of business, but in response and/or in conteFmrpaslasetitotin of litigation, the protection may apply”). Plaintiff’s counsel did not appeal the decision, and this Court finds no reason to vary from it. The documents Plaintiff seeks contain communications with or involving attorneys discussing strategy associated with monitoring and sampling or documents that include

attorney comments or revisions. The privilege log reveals that the counsel involved include outside attorneys with Kirkland & Ellis and Arnold & Porter along with the BP Defendants’ in-house attorneys James Pickett, Nathan Block, and Donna Ward. (Rec. doc. 138-4). Mike Taylor and Dan Zbinden were former employees of the BP Defendants Id. rehired to assist with the response. ( ). The Court finds that these documents fall within the purview of the attorney-client privilege and/or the work-product privilege. Plaintiff maintains that the privilege does not automatically attach to in-house counsels’

communications regardFinrags smetotni itoring and sampling. Once again, this argument has already been rejected. , 2023 WL 4988887, at *4 (“Finally, Plaintiff makes a big issue of the fact that Pickett was in-house, rather than outside counsel. While it may be more difficult sometimes to ascertain when in-house counsel is wearing a business hat versus a legal hat, the analysis as to whether a commuInni craet Aiobnil iifsy privileged or protected by work product is no different. As Judge Jones noted in , 2017 WL 6757558, at * 9 (N.D. Fla. Dec. 29, 2017), ‘simply because a lawyer is involved with a business related issue does not necessarily mean the communication is not privileged.’”).

The only relevant question for each and every document that Plaintiff seeks is whetheSre iet Scloonctuamin sv . pInrot'tle Pctaepde rl eCgoa.l advice or attorney work product, not its underlying topic. In re Vioxx Prods. Liab. Litig. , 549 F. Supp. 3d 519, 524 (E.D. La. 2021) (Fallon, J.) (citing , 501 F. Supp. 2d 789, 797 (E.D. La. 2007)) (“In order for attorney-client privilege to apply, legal advice must be the primary purpose of the communication.”). The certitude of litigation after the oil spill rendered legal advice necessary as soon Ians rper Oacilt iScpaiblll eb.y t“hTeh eO irle Rspigo nDseee ptow athteisr oHilo sripziolln was unprecedented in size and complexity.” , 148 F. Supp. 3d 563, 570

(E.D. La. 2015). Considering the magnitude of the spill, the Court concludes that counsel’s involvement in these technical decisions was not to manage any technical aspects or reactions but to advise on the legal implications of these reactions in response to the particular circumstances and guaranteed future litigation. Plaintiff further maintains that she needs all communications surrounding monitoring and sampling of data to challenge the ultimate use of the data. Under Plaintiff’s theory, these communications all contain “underlying facts and data.” Again, this argument

has been rejected. Courts have affirmed the privileSgeeed nature of the worksCturleliavmers associated with data collected by Exponent and Stantec. Rec. doc. 89 (Stantec); , 2023 WL 11992401, at *1 (Exponent). The ultimate data associated with the response has been public for many years and relied on by numerous academic papers. Plaintiff’s apparent need for the legal discussions that involved the collection is belied by prior court decisioCn.s and Dthoec auvmaielanbtisl iAtys soof csiuacthe dd aWtai ttho htheer iBnP t hDee pfeunbdliac nsptsh’ ePraer. ticipation in the OSAT

Finally, Plaintiff challenges the withholding of documents related to the BP Defendants’ work with the OSAT reports. These reports were commissioned by the Federal On Scene Coordinator to evaluate various aspects of the oil spill’s impact on beaches and public health. Courts have recognized that “BP’s participation in the creation of the OSAT reports does not precludCeu liltiv efrrom having privileged conversations regarding issues addressed in the reports.” , 2023 WL 11992401, at *4. Here, all of the challenged documents involve the participation of the BP Defendants’ in-house attorneys, namely, JamCeusl lPiviecrkett, Jean Martin, Nathan Block, Farley Burge, Stephen Palmer, and Donna Ward. In , the Florida District Court affirmed the BP Defendants’ claim of privilege, finding that “internal confidential communications” included “comments and materials provided to counsel about draft OSAT reports.” No, 21- 4942, 2023 WL 11992401, at *4. That reasoning applies here. The BP Defendants’ in- house counsel were involved in legal analysis associated with the OSAT reports and the IrVel.a tedC doantac liunsvioolnved in that analysis. The documents were properly withheld.

FITo rI Sth Oe RfoDrEegRoEiDng reasons, DENIEDthat Plaintiff’s Proposed Motion to Compel Defendants’ Documents April (rec. doc. 138) is . 8th New Orleans, Louisiana, this day of , 2025.

____________________________________________________ MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE