Texas Brine Co. v. Occidental Chem. Corp.

879 F.3d 1224
CourtCourt of Appeals for the Tenth Circuit
DecidedJanuary 19, 2018
Docket17-6075, 17-6076
StatusPublished
Cited by18 cases

This text of 879 F.3d 1224 (Texas Brine Co. v. Occidental Chem. Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Brine Co. v. Occidental Chem. Corp., 879 F.3d 1224 (10th Cir. 2018).

Opinion

BALDOCK, Circuit Judge.

I.

Defendant Texas Brine Company, LLC (Texas Brine) operates brine wells on land owned by Co-Defendant Occidental Chemical Corporation (Oxy) in Louisiana. In August 2012, a sinkhole appeared near one of these wells. After the sinkhole appeared, Texas Brine began clean-up efforts. To manage this crisis, Texas Brine consulted with others. In December 2012, Texas Brine retained Frontier International Group, LLC (Frontier), an Oklahoma-based consulting firm, for “emergency management, state and local government relations, community relations, litigation settlement strategy, and media communications.” Some time later, Texas Brine retained Brooks Altshuler, an attorney and Frontier’s owner, in his individual capacity to advise the company on response and remediation efforts and to negotiate with government agencies. Later, Texas Brine retained Frontier as a consulting expert for trial preparation.

Litigation began soon after the sinkhole appeared, with multiple plaintiffs suing Texas Brine and Oxy in the Eastern District of Louisiana. In that suit, the plaintiffs alleged the negligent operation of a brine well resulted in the sinkhole and caused damage to the plaintiffs’ properties. In this underlying litigation, Texas Brine filed a cross-claim against Oxy seeking indemnity for $100 million spent responding to the sinkhole crisis, $6.5 million of which Texas Brine claims is for the work Frontier performed. To verify the work Frontier performed and the cost of such work, Oxy issued a subpoena duces tecum to nonparty Frontier, requesting production of eight categories of documents related to services Frontier provided Texas Brine. 1 In response, Texas Brine filed a motion to quash the subpoena in the Western District of Oklahoma, the district where compliance is required. See Fed. R. Civ, P. 45(d)(3)(A). Proceeding under the uncontested assumption that Louisiana law applied, Texas Brine first claimed the attorney-client. privilege protected the subpoenaed communications.

In a written order, the district court granted the motion in part and denied it in part, Leblanc v. Texas Brine Co., No. 16-1026, 2017 WL 913801, at *1 (W.D. Okla. Mar. 7, 2017). In its order, the court noted that Texas Brine failed to comply with Fed. R, Civ. P. 45(e)(2)(A), which requires a person moving to quash a subpoena under the claim of privilege to “describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.” Instead, Texas Brine asserted a “blanket claim of privilege.” Leblanc, 2017 WL 913801, at *4. Only in the context of Texas Brine’s claim of a blanket privilege did the court address whether Louisiana’s attorney-client privilege statute extends the privilege to a public relations firm and its agents. 2 As Louisiana courts have not. addressed this exact issue, the court looked to Wigmore’s definition of attorney-client privilege, which protects “legal advice.” Id. (quoting 8 J. Wigmore, Evidence in Trials at Common Law § 2292, at 564 (J, McNaughton rev, ed. 1961)), Without a privilege .log before it, the court concluded that much of the work Frontier performed for Texas Brine did not constitute “legal advice” and, thus, was not protected by the attornéy-client privilege.' The court finished its discussion on attorney-client privilege by stating: “the Court denies Texas Brine’s Motion as to attorney-client privilege, absent a specific showing of the legal nature of each withheld communication.” Id. (emphasis added).

Texas Brine also argu.ed the work product doctrine governed the subpoenaed communications. The court reached a similar conclusion regarding this argument, stating the work product doctrine does not protect a public relations firm’s written materials regarding business advice or an attorney’s non-litigation activity. Again, the court emphasized much of the communications were not protected, “absent a specific showing of the legal nature of each withheld communication, and that it was specifically created in anticipation of litigation.” Id. at *5 (emphasis added).

The district court concluded its order by again emphasizing “Texas Brine’s conclu-sory, blanket assertions of privilege are insufficient to quash the subpoena.” Id. (emphasis added). The court required Texas Brine to produce a privilege log for any communications that it believed were protected. With respect to the eight categories of subpoenaed documents, the court ruled as follows: Frontier need not produce category (1) because the request was over-broad; Frontier must produce the documents requested in categories (2), (3), (4), (5), and (7) “subject to privilege screening and production of a log consistent with Fed. R. Civ. P. 26(b)(5)(A)”-, and Frontier must produce the documents requested in categories (6) and (8). 3 Id. (emphasis added).

Texas Brine filed a timely notice of appeal. 4 Texas Brine then filed a motion to stay the district court’s order pending these proceedings, which the district court denied. Frontier complied with the district court’s order and has,- at this point, produced around 20,000 documents and a privilege log regarding the confidentiality of the withheld documents.

II.

At the outset, Oxy claims this dispute is not ripe for adjudication because the district court did not actually order production of any allegedly privileged material. Instead, the court ordered production of non-privileged material to Oxy subject to a privilege log. Until the district court orders production of privileged material, Oxy forcibly argues, there is no dispute to resolve. In response, Texas Brine asserts the court erred in defining the scope of the privilege too narrowly and “ordering] production of documents that are arguably privileged communications.” Appellant Reply Brief, 2. In other words, Texas Brine argues in a vacuum that the court construed Louisiana law too narrowly.

But the court has yet to apply Louisiana law to any contested document. We will not resolve a dispute “if it rests upon ‘contingent future events that may not occur as anticipated or indeed may not occur at all.”’ United States v. Bennett, 823 F.3d 1316, 1326 (10th Cir. 2016) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998)), This principle—the ripeness doctrine—derives from both constitutional and prudential concerns. Id. at 1325. The purpose of the ripeness doctrine is to prevent the premature adjudication of abstract claims. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995). To determine whether a dispute is prudentially ripe, this Court “balance[s] the fitness of the issue for judicial review with the hardship to the parties from withholding review.” Bennett, 823 F.3d at 1326.

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Bluebook (online)
879 F.3d 1224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-brine-co-v-occidental-chem-corp-ca10-2018.