Opinion

Ictech-Bendeck v. Waste Connections Bayou, Inc.

Court
District Court, E.D. Louisiana
Filed
Jan 2, 2024
Cited by
0 cases
Authority
More cited than 22.4%

The opinion

EASTERN DISTRICT OF LOUISIANA

ELIAS JORGE “GEORGE” CIVIL ACTION

ICTECH-BENDECK,

Plaintiff

VERSUS NO. 18-7889

c/w 18-8071,

18-8218, 18-9312

WASTE CONNECTIONS SECTION: “E” (5)

BAYOU, INC., ET AL.,

Defendants

Related Case:

FREDERICK ADDISON, ET AL., CIVIL ACTION

Plaintiffs

VERSUS NO. 19-11133

c/w 19-14512

LOUISIANA REGIONAL SECTION: “E” (5)

LANDFILL COMPANY, ET AL.,

Defendants

Applies to: All Cases

ORDER AND REASONS

Before the Court are two contested discovery motions: Plaintiffs’ Motion to Compel

Discovery Against the Waste Connections Defendants (hereinafter “Motion to Compel”)1

and a Motion to Quash the Addison Plaintiffs’ Subpoena to SCS Engineers (hereinafter

“Motion to Quash”) filed by Defendants Waste Connections Bayou, Inc., Waste

Connections US, Inc., and Louisiana Regional Landfill Company (collectively the “Waste

1 R. Doc. 326 (18-7889); R. Doc. 380 (19-11133). Defendants opposed. R. Doc. 329 (18-7889); R. Doc. 383

(19-11133). Plaintiffs replied. R. Doc. 389 (19-11133). Plaintiffs filed a supplemental memorandum. R.

Doc. 393 (19-11133). Defendants filed a supplemental reply. R. Doc. 394 (19-11133).

these contested motions relate to documents involving SCS Engineers,3 which are

categorized into nine “Categories of Work” as identified in the Waste Connections

Defendants’ December 1, 2023 letter to the Court.4 This Order concerns certain

documents related to Category #5, onsite landfill surface pollutant concentration reports

and accompanying memorandum,5 and Category #7, the Jefferson Parish Landfill Special

Waste Odor Evaluation,6 as identified in Attachment A to this Order and Reasons.

BACKGROUND

This case concerns the operation of the Jefferson Parish Landfill (the “Landfill”)

and the resulting odors emitted from the Landfill between July 1, 2017, and December 31,

2019. Having previously stated the facts of this case in detail, the Court will repeat only

the facts relevant to the instant motion.

The Court held a trial on general causation, which took place on January 31,

February 1-4, and February 22-25, 2022.7 On November 29, 2022, this Court issued its

Findings of Fact and Conclusions of Law as to general causation, determining odors and

2 R. Doc. 368 (19-11133). Plaintiffs filed a Motion to Enforce Subpoena, which the Court construes as an

opposition to the Motion to Quash. R. Doc. 381 (19-11133). Defendants filed a Reply Memorandum in

Support of Their Motion to Quash. R. Doc. 388 (19-11133). See also Subpoena to Produce Documents

Issued to SCS Engineers, R. Doc. 381-5 (19-11133).

3 See Requests for Production 58-66, Addison Plaintiffs’ Second Set of Requests for Production of

Documents to the Waste Connections Defendants, R. Doc. 329-2 at 8, 12 (18-7889).

4 See Appendix A to Letter from Megan R. Brillault, Counsel for the Waste Connections Defendants, to the

Court (Dec. 1, 2023). The “Chart Showing Status of Production” attached to the December 1, 2023 Letter

contained comments from both the Waste Connections Defendants and Plaintiffs. As depicted in

Attachment A, the Court assigned numbers to the Categories of Work for ease of reference.

5 Category #5 concerns documents related to Two onsite landfill surface pollutant concentration reports

and accompanying memorandum: (a) Surface Pollutant Concentration Measurements at the Jefferson

Parish Landfill–Data Report, dated May 31, 2019 (WC_JPLF_00210878); (b) Surface Pollutant

Concentration Measurements at the Jefferson Parish Landfill--Supplemental Data Report, dated July 10,

2019 (WC_JPLF_00210732); and (c) Memorandum – Surface Pollutant Concentration Measurements at

the Jefferson Parish Landfill, dated April 23, 2021 (WC_JPLF_00403662). See Attachment A.

6 Category #7 concerns documents related to the Jefferson Parish Landfill Special Waste Odor Evaluation,

dated September 24, 2019. See Attachment A.

7 R. Docs. 243-247, 256-259 (18-7889); R. Docs. 274-278, 286-289 (19-11133).

occurred during the relevant time period;9 and exposure to the odors and gases emitted

by the Landfill at a level of five ppb for thirty minutes was capable of producing the

injuries claimed by any one or more of the plaintiffs.10 Having found for Plaintiffs at the

general causation stage, the Court decided a trial should be conducted with a select

number of Addison plaintiffs (hereinafter “the first Addison trial”).

The Court set the first Addison trial to begin on September 5, 2023,11 which has

now been continued to August 5, 2024.12 On October 31, 2023, the Court entered its

Twelfth Case Management Order governing the discovery, pretrial, and trial dates leading

up to the first Addison trial.13 During discovery, Plaintiffs filed the instant Motion to

Compel14 and Motion to Enforce Subpoena to SCS Engineers,15 and the Waste

Connections Defendants filed the instant Motion to Quash.16 To date, the Court has issued

several orders resolving issues related to these contested discovery motions.17 On October

23, 2023, the Court ordered the Waste Connections Defendants to produce privilege logs

containing descriptions of documents and privilege invoked for documents subject to

Plaintiffs’ subpoena involving SCS Engineers that the Waste Connections Defendants

withheld.18 The Court further ordered the Waste Connections Defendants to produce to

the Court all documents referenced in the privilege logs for in camera review.19 Plaintiffs

8 R. Doc. 323 at p. 5 (19-11133).

9 Id. at p. 26.

10 Id. at p. 27.

11 Id.

12 R. Doc. 381 (18-7889); R. Doc. 429 (19-11133).

13 Id.

14 R. Doc. 326 (18-7889); R. Doc. 380 (19-11133).

15 R. Doc. 381 (19-11133).

16 R. Doc. 368 (19-11133).

17 See R. Doc. 338 (18-7889); R. Doc. 402 (19-11133); R. Doc. 344 (18-7889); R. Doc. 417 (19-11133); R.

Doc 382 (18-7889); R. Doc. 428 (19-11133).

18 R. Doc. 382 (18-7889); R. Doc. 428 (19-11133).

19 R. Doc. 384 (18-7889); R. Doc. 433 (19-11133).

Defendants on November 13, 2023 (the “November 13 Privilege Log”), which involved the

documents at issue in Plaintiffs’ Motion to Compel.20 The Defendants also produced a

privilege log on December 4, 2023 (the “December 4 Privilege Log”), which involves

documents at issue in Defendants’ Motion to Quash.21

LEGAL STANDARD

“Parties may obtain discovery regarding any nonprivileged matter that is relevant

to any party’s claim or defense and proportional to the needs of the case.”22 “Information

within the scope of discovery need not be admissible in evidence to be discovered.”23 At

the discovery stage, relevant evidence includes “[a]ny matter that bears on, or that

reasonably could lead to other matters that could bear on, any issue that is or may be in

that case.”24 “[T]he threshold for relevance at the discovery stage [under Rule 26(b) of the

Federal Rules of Civil Procedure] is lower than at the trial stage” under Federal Rule of

Evidence 401.25 Discovery should be allowed unless the party opposing discovery

establishes that the information sought “can have no possible bearing on the claim or

defense of the party seeking discovery.”26 If relevance is in doubt, the court should be

permissive in allowing discovery.27 This broad scope is necessary given the nature of

litigation, where determinations of discoverability are made well in advance of trial.28

20 R. Doc. 385 (18-7889); R. Doc. 436 (19-11133).

21 R. Doc. 368 (19-11133).

22 FED. R. CIV. PRO. 26(b); see also Miller v. Sam Houston Univ., 986 F.3d 880, 891 (5th Cir. 2021).

23 Id.

24 Stevenson v. Benjamin, 2022 WL 12309062, *1 (5th Cir. 10/21/2022) (quoting Coughlin v. Lee, 946 F.2d

1152, 1159 (5th Cir. 1991)); Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 350-51 (1978); Rangel v.

Gonzalez Mascorro, 274 F.R.D. 585, 590 (S.D. Tex. 4/11/2011).

25 Id.

26 Dotson v. Edmonson, 2017 WL 11535244, at *2 (E.D. La. 11/21/2017) (citing Merrill v. Waffle House,

Inc., 227 F.R.D. 467, 470 (N.D. Tex. 2/4/2005)).

27 E.E.O.C. v. Simply Storage Mgmt., L.L.C., 270 F.R.D. 430, 433 (S.D. Ind. 5/11/2010) (quoting Truswal

Sys. Corp. v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1212 (Fed. Cir. 1987)).

28 Rangel, 274 F.R.D. at 590 n.5.

matters,”29 and the Court must determine the scope of discovery “in light of the relevant

facts of the particular case.”30

While the discovery rules are accorded broad and liberal treatment to achieve their

purpose of adequately informing litigants in civil trials,31 discovery does have “‘ultimate

and necessary boundaries.’”32 Rule 26(b)(2)(C) mandates that the Court limit the

frequency or extent of discovery otherwise allowed, if it determines: “(i) the discovery

sought is unreasonably cumulative or duplicative, or can be obtained from some other

source that is more convenient, less burdensome, or less expensive; (ii) the party seeking

discovery has had ample opportunity to obtain the information by discovery in the action;

or (iii) the proposed discovery is outside the scope of Rule 26(b)(1).”33 Further, Rule 26(b)

“has never been a license to engage in an unwieldy, burdensome, and speculative fishing

expedition.”34 While relevancy in the discovery context is broader than in the trial context,

that legal tenet should not be misapplied to allow fishing expeditions in discovery.35

“The party filing the motion to compel bears the burden of showing that the

materials and information sought are relevant to the action or will lead to the discovery

of admissible evidence.”36 “Once the moving party establishes that the materials

requested are within the scope of permissible discovery, the burden shifts to the party

29 Miller, 986 F.3d at 891 (citing Crosby v. la. Health Serv. & Indemnity Co., 647 F.3d 258, 261 (5th Cir.

2011)).

30 See Conboy v. Edward D. Jones & Co., 140 F. App’x 510, 517 (5th Cir. 2005).

31 Herbert v. Lando, 441 U.S. 153, 176 (1979) (citations omitted).

32 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (quoting Hickman v. Taylor, 329 U.S. 495,

507 (1947)).

33 FED. R. CIV. PRO. 26(b)(2)(C)(i)–(iii).

34 Crosby v. La. Health Serv. & Indem. Co., 647 F.3d 258, 264 (5th Cir. 2011).

35 Trident Mgmt. Grp., LLC v. GLF Constr. Corp., No. 16-17277, 2017 WL 3011144, at *4 (E.D. La.

7/14/2017) (citations omitted); see also Crosby, 647 F.3d at 264; Ganpat v. E. Pac. Shipping, PTE, Ltd.,

No. 18-13556, 2020 WL 1046336, at *3 (E.D. La. 3/4/2020) (Morgan, J.).

36 Summers v. Louisiana, 2021 WL 4392309, *3 (M.D. La. 9/24/2021) (internal quotations and citations

omitted).

burdensome or oppressive, and thus should not be permitted.”37 Further, a party may

discover “facts known or opinions held” by a non-testifying expert retained “in

anticipation of litigation . . ., only upon showing of exceptional circumstances under which

it is impracticable for the party seeking discovery to obtain facts or opinions on the same

subject by other means.”38

LAW AND ANALYSIS

In their motion, Plaintiffs seek to compel discovery of hundreds of documents.39

After discussions with the parties, the Court categorizes documents pertaining to the

outstanding discovery requests into nine categories. This Order and Reasons addresses

discovery issues involving documents concerning Dawn Thibodaux, Matt Crockett, and

David Jones that relate to Categories #5 and #7 as identified in Attachment A. Defendants

claim the relevant documents in the Privilege Logs they provided to the Court are properly

withheld because the documents are privileged under either the work product doctrine,

the attorney-client privilege, or both.40 The Court addresses each argument in turn.

I. The Work Product Doctrine

Defendants argue the following documents in the November 13 Privilege Log,

which relate to Categories #5 and #7 and concern Dawn Thibodaux, Matt Crockett, and

David Jones, are privileged based on the work product doctrine: Entries 0520, 0521,

0524, 0525, 0526, 0528, 0531, 0532, 0533, 0534, 0535, 0536, 0537, 0539, 0540, 0545,

0546, 0547, 0548, 0549, 0550, 0551, 0557, and 0573.41 Defendants further argue the

following documents in the privilege log produced on December 4, 2023 (the “December

37 Id.

38 FED. R. CIV. PRO. 26(b)(4)(D).

39 R. Doc. 326 (18-7889); R. Doc. 380 (19-11133).

40 R. Doc. 386 (18-7889); R. Doc. 438 (19-11133).

41 See Attachment A.

Matt Crockett, and David Jones, are privileged based on the work product doctrine:

Documents 0288, 0290, 0292, 0293, 0294, 0303, 0304, 0339, 0341, 0379, 0380, 0384,

0385, 0387, 0411, 0423, 0425, 0451, 0452, 0453, and 0494.42

Plaintiffs argue the documents at issue fall within the exception to Rule

26(b)(4)(D), which renders the privileged work product of consulting experts

discoverable when it is impracticable for a party to obtain facts or opinions on the same

subject by other means.43 In opposition, Defendants attest that their claim of privilege is

bolstered by the fact that nearly all of the withheld documents were created after the start

of litigation44 and assert that Plaintiffs fail to establish “‘exceptional circumstances’

necessary to discover these privileged communications.”45

“Federal law governs . . . parties’ assertions that certain information is protected

from disclosure by the work product doctrine.”46 “The work product doctrine is not an

umbrella that shades all materials prepared by a lawyer. The work product doctrine

focuses only on materials assembled and brought into being in anticipation of

litigation.”47 The work product doctrine applies to “documents and tangible things that

are prepared in anticipation of litigation or for trial by or for another party or its

representative.”48 The doctrine does not place work product outside the scope of

discovery, but instead “creates a form of qualified immunity from discovery” for materials

42 See id.

43 See R. Doc. 385 at p. 2 (18-7889).

44 R. Doc. 329 at p. 11.

45 R. Doc. 438 at (1819-11133).

46 Southern Scrap Material Co. v. Fleming, 2003 WL 21474516, at *5 (E.D. La. June 18, 2003) (citing

Naquin v. Unocal Corp., 2002 WL 1837838, at *2 (E.D. La. 2002)).

47 United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982).

48 F .R.C .P. 26(b)(3)(A).

party’s agent from discovery, as long as they were prepared in anticipation of litigation.”50

The level of protection depends on whether the materials prepared in anticipation

of litigation constitute “opinion” work product or non-opinion, “fact” work product.51 The

“mental impressions, conclusions, opinions or legal theories of an attorney” are opinion

work product subject to a higher showing for production.52 “Fact work product, on the

other hand, is any material ‘prepared in anticipation of litigation or for trial by or for

another party or its representative’ under Rule 26(b)(3)(A) but ‘not the “mental

impressions, conclusions, opinions or legal theories of an attorney”’ under subsection

(b)(3)(B).”53 A party seeking discovery of ordinary fact work product must make a

showing of “substantial need and the inability to obtain the substantial equivalent

elsewhere.”54 “However, absent a showing of compelling need and the inability to discover

the substantial equivalent by other means, work product evidencing mental impressions

of counsel, conclusions, opinions and legal theories of an attorney are not discoverable.”55

The responding party seeking to withhold responsive documents or materials

under the work product doctrine “must prove that each document it has withheld is

privileged.”56 “Blanket assertions of privilege” are insufficient to carry a party’s burden.57

Defendants failed to carry their burden. Defendants argue only that their claim of

privilege is bolstered by the fact that nearly all of the withheld documents were created

49 Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 514 n.2 (5th Cir. 1993).

50 Southern Scrap Material, 2003 WL 21474516, at *6.

51 See id, at *7.

52 In re Int’l Sys. & Controls Corp. Sec. Lit., 693 F.2d 1235, 1240 (5th Cir. 1982).

53 See Doe 1 v. Baylor Univ., 335 F.R.D. 476, 487 (W.D. Tex. 2020).

54 Southern Scrap Material, 2003 WL 21474516, at *7, 13.

55 Id. at *7.

56 Civic Center Site Development, LLC v. Certain Underwriters at Lloyd’s London, 2023 WL 5974843, at

*3 (E.D. La. Sept. 14, 2023).

57 United States v. Davis, 636 F.2d 1028, 1044 n.20 (5th Cir. 1981).

tend to bolster an adequately asserted claim of privilege, the Court finds such a fact on its

own is insufficient to establish documents are properly withheld under the work product

doctrine.59 Because Defendants provided only blanket assertions of work product

protection, the Court finds Defendants have failed to carry their burden.60 Additionally,

having conducted in camera review, the Court finds that these documents are “fact” work

product, which contain no “mental impressions, conclusions, opinions or legal theories of

an attorney.”61 Plaintiffs demonstrate the requisite “substantial need” and “inability to

discover the substantial equivalent elsewhere” to render these documents discoverable.62

Further, to the extent these documents contain opinion work product, Plaintiffs

demonstrate the requisite “compelling need and inability to discovery the substantial

equivalent by other means.”63 Accordingly, Defendants’ claims of privilege based on the

work product doctrine with respect to the documents listed above are denied.

II. The Attorney-Client Privilege

Defendants withheld the following documents, which relate to Categories #5 and

#7 and concern Dawn Thibodaux, Matt Crockett, and David Jones, on the basis that the

attorney-client privilege protects them from discovery: Entries 0528 and 0573 in the

58 R. Doc. 329 at p. 11.

59 See, e.g., WSSA, LLC v. Safran, No. 1:18-CV-2392, 2019 WL 5595825 (M.D. Penn. Oct. 30, 2019) (finding

that, among other things, the fact that “many of the documents post-date . . . the date upon which [the

defendant] was placed on notice of potential litigation . . . further bolsters their privileged status as records

made in anticipation of litigation”).

60 Defendants assert only the work product doctrine, and not the attorney-client privilege, over the following

documents in the November 13 Privilege Log: 0520, 0521, 0524, 0525, 0526, 0531, 0532, 0533, 0534, 0535,

0536, 0537, 0539, 0540, 0545, 0546, 0547, 0548, 0549, 0550, 0551, and 0557; and the following documents

in the December 4 Privilege Log: 0292, 0293, 0294, 0303, 0304, 0339, 0341, 0379, 0380, 0384, 0385,

0387, 0411, 0423, 0425, 0451, 0452, 0453, and 0494. Accordingly, having found the work product doctrine

inapplicable, Defendants must produce these documents to Plaintiffs unredacted and in full. As to the four

remaining documents, unless they are subject to the attorney-client privilege as determined herein, the

documents are subject to disclosure.

61 See In re Int’l Sys. & Controls Corp. Sec. Lit., 693 F.2d at 1240.

62 See Southern Scrap Material, 2003 WL 21474516, at *7, 13.

63 See id. at *7.

Log.65 Defendants argue that attorney-client privilege shields these documents because

they contain “privileged impressions” created “pursuant to [SCS Engineers’] retention by

outside litigation counsel as a consulting expert.”66

The work-product doctrine is distinct from and broader than the attorney-client

privilege.67 “[T]he work product privilege [exists] . . . to promote the adversary system by

safeguarding the fruits of an attorney’s trial preparations from the discovery attempts of

an opponent,” whereas “[t]he attorney-client privilege exists to protect confidential

communications and to protect the attorney-client relationship.” 68

“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, whether or not that advice is based on privileged

communications from the client.”69 “The purpose of the attorney-client privilege is to

‘encourage full and frank communication between attorneys and their clients and thereby

promote broader public interests in the observance of law and administration of

justice.”70 “For a communication to be protected under the privilege, the proponent ‘must

prove: (1) that . . . a confidential communication [was made]; (2) to a lawyer or his

subordinate, (3) for the primary purpose of securing either a legal opinion or legal

64 See Attachment A.

65 See id.

66 R. Doc. 438 (19-11133) at pp. 17-18.

67 See United States v. Nobles, 422 U.S. 225, 238 (1975).

68 Shields v. Sturm, Ruger, & Co., 864 F.2d 379, 382 (5th Cir. 1989).

69 Earl v. Boeing Co., 2021 WL 963405, at *2 (E.D. Tex. Mar. 15, 2021) (quoting United States v. Mobil

Corp., No. 4:19-cv-507, 149 F.R.D. 533, 536 (N.D. Tex. 1993)) (vacated in part, on other grounds, by In re

Boeing Co., No. 21-40190, 2021 WL 3233504 (5th Cir. July 29, 2021)).

70 Id. (quoting Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)).

client are protected ‘if they would tend to disclose the client’s confidential

communications.’”72 “Because the attorney-client privilege ‘has the effect of withholding

relevant information from the fact-finder,’ it is interpreted narrowly so as to ‘apply only

where necessary to achieve its purpose.’”73 “Further, ‘the privilege only protects disclosure

of communications; it does not protect disclosure of the underlying facts by those who

communicated with the attorney.’”74

“Application of the attorney-client privilege is a ‘question of fact, to be determined

in the light of the purpose of the privilege and guided by judicial precedents.’”75

“Determining the applicability of the privilege is a 'highly fact-specific’ inquiry, and the

party asserting the privilege bears the burden of proof.’”76 “‘Attorney-client privilege is

not presumed’77 . . . and ‘ambiguities as to whether the elements of a privilege claim have

been met are construed against the proponent.’”78

When a corporate setting is involved, courts have recognized the attorney-client

privilege analysis “presents unique challenges.”79 In Stoffels v. SBC Communications,

Inc., the United States District Court for the Western District of Texas stated:

The attorney-client privilege applies in a corporate setting. However,

because in-house counsel has an increased level of participation in the day-

to-day operations of the corporation, it is more difficult to define the scope

of the privilege when a communication is made to in-house counsel. Thus,

in such a setting, the attorney-client privilege attaches only to

communications made for the purpose of giving or obtaining legal advice or

services, not business or technical advice or management decisions. The

71 Id. (quoting EEOC v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017)).

72 Id. (quoting O’Malley v. Pub. Belt R.R. Comm’n for City of New Orleans, No. 17-4812, 2018 WL 814190,

at *2 (E.D. La. Feb. 9, 2018)).

73 Id. (quoting BDO USA, 876 F.3d at 695).

74 Id. (quoting Upjohn, 449 U.S. at 395).

75 Id. at *3 (quoting In re Auclair, 961 F.3d 65, 68 (5th Cir. 1992)).

76 Id. (quoting BDO USA, 986 F.3d at 695).

77 Id. (quoting United States v. Tedder, 801 F.2d 1437, 1441 (4th Cir. 1986)).

78 Id. (quoting BDO USA, 986 F.3d at 695).

79 Id. at *4.

facilitated the rendition of predominantly legal advice or services to the

client.80

“Even though this standard is ‘time-consuming’ and ‘requires a document-by-document

analysis,’ it ‘ensures a balance between forbidding a company from trying to cloak non-

privileged communications with protection by unnecessarily sending them to attorneys

and encouraging in-house counsel involvement early and often in corporate decision-

making.’”81

“Legal advice, as contrasted with business advice, ‘involves the interpretation and

application of legal principles to guide future conduct or to assess past conduct.’”82 “If

advice offered by in-house counsel intertwines business and legal advice, attorney-client

privilege protects the communication only if the legal advice predominates.”83 “Simply

labeling communications as ‘legal advice’ is conclusory and insufficient to satisfy the

privilege-proponent’s burden.”84 Moreover, “[w]hen a corporation simultaneously sends

communications to both lawyers and non-lawyers, . . . ‘it usually cannot claim that the

primary purpose of the communication was for legal advice or assistance because the

communication served both business and legal purposes.’”85

Having conducted in camera review, the Court denies Defendants’ claims of

privilege based on the attorney-client privilege for the documents related to Categories

#5 and #7, which concern Dawn Thibodaux, Matt Crockett, and David Jones. “[T]he

attorney-client privilege does not apply to every communication involving counsel,” but

80 Id. (quoting Stoffels v. SBC Comms., Inc., 263 F.R.D. 406, 411 (W.D. Tex. 2009)).

81 Id. at *3 n.3 (quoting Corporate Attorney-Client Privilege in the Digital Age: War on Two Fronts?, 16

STAN. J. L. BUS. & FIN. 288, 307 (2011)).

82 Id. (quoting BDO USA, 856 F.3d at 365).

83 Id. (quoting Neuder v. Battelle Pac. Nw. Lab., 194 F.R.D. 289, 292 (D.D.C. 2000)).

84 Id. (citing Coltec Indus., Inc. v. Am. Motorists Ins. Co., 197 F.R.D. 368, 373 (N.D. Ill. 2000)).

85 Slocum v. Int’l Paper Co., 549 F. Supp. 3d 519, 524 (E.D. La. 2021) (quoting In re Vioxx Prod. Liability

Lit., 501 F. Supp. 2d 789, 805 (E.D. La. 2007)).

purpose of obtaining legal advice.”86 Here, Defendants have not met the burden of

demonstrating that the primary purpose of the four documents at issue were to obtain

advice on specified legal issues as required for attorney-client privilege to attach.87

Rather, the documents were addressed to both lawyers and non-lawyers for review,

comment, and approval, which supports a finding that the primary purpose was not to

obtain legal assistance. More specifically, the Court makes the following findings:

 Page 2 of entry 0573 in the November 13 Privilege Log contains legal advice. The

remainder of entry 0573 does not contain communications made predominantly

for the purpose of giving or obtaining legal advice or services and is therefore not

subject to the attorney-client privilege. Accordingly, Defendants must produce the

document to Plaintiffs but may redact page 2 prior to disclosure.

 Entry 0528 in the November 13 Privilege Log and entries 0288 and 0290 in the

December 4 Privilege Log do not contain communications made predominantly

for the purpose of giving or obtaining legal advice or services and are therefore not

subject to the attorney-client privilege. Accordingly, the documents must be

produced in full, without redactions.

CONCLUSION

For the foregoing reasons, it is ORDERED that Plaintiffs’ Motion to Compel is

GRANTED IN PART and DEFERRED IN PART 88 as stated herein.

IT IS FURTHER ORDERED that Defendants’ Motion to Quash is DENIED IN

PART and DEFERRED IN PART.89

IT IS FURTHER ORDERED that the Waste Connections Defendants produce

the following documents in full, without redactions, by January 3, 2024:

86 Tonto Management Co., Inc. v. Soggy Doggie, LLC, 2020 WL 9172077, at *9 (E.D. La. June 25, 2020).

87 See id.

88 R. Doc. 326 (18-7889); R. Doc. 380 (19-11133). The Court has ruled on the relevant documents involving

Dawn Thibodaux, Matt Crockett, and David Jones listed in the November 13 and December 4 Privilege Logs

in this Order. The Court defers ruling on the remaining issues raised in Plaintiffs’ motion to compel at this

time.

89 R. Doc. 368 (19-11133).

e Entries 0520, 0521, 0524, 0525, 0526, 0528, 0531, 0532, 0533, 0534, 0535, 0536,

0537, 0539, 0540, 0545, 0546, 0547, 0548, 0549, 0550, 0551, and 0557 in the

November 13 Privilege Log; and

e Entries 0288, 0290, 0292, 0293, 0294, 0303, 0304, 0339, 0341, 0379, 0380,

0384, 0385, 0387, 0411, 0423, 0425, 0451, 0452, 0453, and 0494 in the December

4 Privilege Log.

IT IS FURTHER ORDERED that the Waste Connections Defendants produce

Entry 0573 in the November 13 Privilege Log with the redaction of page 2 by January 3,

2024.

New Orleans, Louisiana, this 2nd day of January, 2024.

— ecto

UNITED STATES DISTRICT JUDGE

14

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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