“When a party relies on a privilege log to assert these privileges, the log must ‘as to each document . . . set[] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’”
How later courts described this case
- “When a party relies on a privilege log to assert these privileges, the log must ‘as to each document . . . set[] forth specific facts that, if credited, would suffice to establish each element of the privilege or immunity that is claimed.’”
- foot-dragging and failure to comply with court’s order showed willfulness and bad faith
- stating that the attorney-client privilege “is not a broad rule of law which interposes a blanket ban on the testimony of an attorney”
- “The mere fact this report deals with facts, opinions, and recommendations that later may be the focus of litigation does not establish that there was the expectation of litigation when this document was drafted.” (citations omitted)
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
PENEMUE, LLC * CIVIL ACTION
VERSUS * NO. 22-5093
RAYLYN STEVENS, DIRECTOR OF FINANCE * SECTION “P” (2)
AND EX-OFFICIO TAX COLLECTOR FOR THE
CITY OF GRETNA, ET AL. *
ORDER AND REASONS
Pending before me on an expedited basis is Plaintiff Penemue, LLC’s Motion to Compel
Complete Discovery Responses from Defendant Raylyn Stevens, Director of Finance and Ex-
Officio Tax Collector for the City of Gretna (“City of Gretna”) (ECF No. 92) and Motion to
Compel CivicSource’s Compliance with Rule 45 Subpoena and for In Camera Inspection (ECF
No. 93). The City of Gretna and non-party Archon Information Systems, LLC (“CivicSource”)
filed Opposition Memoranda. ECF Nos. 99, 100. Plaintiff requested oral argument, which the
Court granted. The Court held oral argument on Wednesday, June 4, 2025, and took the matter
under submission. ECF No. 103. As ordered during the hearing, the City of Gretna provided a
copy of the documents identified on its privilege log for in camera review alongside the documents
submitted for review by CivicSource.
Having considered the record, the submissions and arguments of counsel, and the
applicable law, and after in camera inspection of the documents at issue, Plaintiff’s motions are
GRANTED IN PART AND DENIED IN PART as set forth herein.
I. BACKGROUND
Plaintiff Penemue, LLC acquired a tax title interest to 46% ownership of certain immovable
property in Gretna, Louisiana, at a June 18, 2018, tax sale. ECF No. 1 ¶ 4. The tax sale certificate
was recorded in the Jefferson Parish conveyance records on August 14, 2018. Id. After Defendant
Stevens filed an Affidavit to Cancel Tax Sale on November 15, 2022, Plaintiff sought declaratory
relief seeking to quiet title and asserting various constitutional claims. Id. at ¶¶ 17–40.
Plaintiff issued discovery requests to the City of Gretna, which responded and delivered a
privilege log. Plaintiff also issued a subpoena duces tecum to CivicSource. In response to the
subpoena, CivicSource produced a privilege log on May 13, 2025, which Plaintiff asserts
demonstrates that City of Gretna did not identify and/or produce all responsive documents in its
earlier discovery responses. ECF No. 92 at 1. Plaintiff seeks an order compelling the City of
Gretna to provide full and complete responses to the First Set of Interrogatories and Requests for
Production of Documents. Id. at 2. It also seeks an order compelling CivicSource to provide a
more detailed privilege log and/or submit the documents for in camera inspection. ECF No. 93.
In Opposition, the City of Gretna asserts that it has conducted a reasonable inquiry,
explaining its search efforts. ECF No. 100 at 1-2. It also argues that it has supplemented its
privilege log consistent with prior orders. Id. at 2. CivicSource’s opposition notes that Plaintiff’s
requests were overbroad and asserts that its privilege log is compliant, and its invocation of
privilege is proper. ECF No. 99. At the hearing, CivicSource stated that its withheld documents
fall into three categories: (1) internal CivicSource communications with in-house legal personnel;
(2) communications between City of Gretna personnel and CivicSource personnel, as Gretna’s
representatives handling tax sales; and (3) emails involving CivicSource personnel, City of Greta
personnel and others sharing a common interest.
II. APPLICABLE LAW AND ANALYSIS
A more complete discussion of the attorney-client-privilege and work product doctrine is
set forth in this Court’s Order and Reasons dated April 14, 2025. ECF No. 88. Briefly, the
attorney-client privilege serves to encourage candid communications between client and counsel,1
1 Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
but must be interpreted narrowly to achieve its purpose because it has the effect of withholding
relevant information.2 The attorney-client privilege also extends to a client’s or attorney’s
representatives to the extent that the representative furthers the provision of legal services.3
However, not all communications between counsel and a client (or representative) are protected.4
Rather, only communications made in confidence for the purpose of obtaining legal advice are
covered.5 For instance, a transmittal letter that includes no confidential communication is not
subject to the attorney-client privilege.6
Despite its name, the common interest privilege is neither common nor a privilege. Instead,
it is an extension of the attorney-client privilege and of the work-product doctrine.7 Consequently,
the common interest doctrine is an exception to the general rule that the attorney-client privilege
is waived upon disclosure of privileged information with a third party, and it likewise applies to
work product.8 The Fifth Circuit has explained that two types of communications are protected
under the common legal interest privilege: (1) communications between co-defendants in actual
litigation and their counsel; and (2) communications between potential co-defendants and their
counsel.9
2 Equal Emp. Opportunity Comm'n v. BDO USA, L.L.P., 876 F.3d 690, 695 (5th Cir. 2017) (brackets omitted) (quoting
United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997)).
3 United States v. Hamdan, Cr. No. 19-60, 2021 WL 1931626, at *5 (E.D. La. May 13, 2021) (Vitter, J.).
4 United States v. Pipkins, 528 F.2d 559, 562–63 (5th Cir. 1976) (stating that the attorney-client privilege “is not a
broad rule of law which interposes a blanket ban on the testimony of an attorney”).
5 United States v. El Paso Co., 682 F.2d 530, 538 (5th Cir. 1982) (citation omitted); see also Hodges, Grant &
Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, 768 F.2d 719, 720 (5th Cir. 1985).
6 Reid v. Transocean Offshore Deepwater Drilling, Inc., No. 13-6080, 2014 WL 2740376, at *1 (E.D. La. June 17,
2014).
7 Treece v. Perrier Condo. Owners Ass'n, Inc., No. 17-10153, 2019 WL 12289568, at *5 (E.D. La. June 20, 2019)
(Douglas, M.J.) (citations omitted); see also Power-One, Inc. v. Artesyn Techs., Inc., No. 05-463, 2007 WL 1170733,
at *2 n.2 (E.D. Tex. Apr. 18, 2007); In re Santa Fe Int’l Corp., 272 F.3d 705, 710–13 (5th Cir. 2001).
8 Treece, 2019 WL 12289568, at *5 (citations omitted).
9 BCR Safeguard Holding, L.L.C. v. Morgan Stanley Real Est. Advisor, Inc., 614 F. App’x 690, 703 (5th Cir. 2015)
(quoting In re Santa Fe, 272 F.3d at 710; United States v. Newell, 315 F.3d 510, 525 (5th Cir. 2002) (quoting same)).
The common legal interest privilege only applies when there is a “palpable threat of litigation at the time of
communication.” In re Santa Fe, 272 F.3d at 711 (citations omitted); King v. Univ. Healthcare Sys., L.C., No. 08-
1060, 2009 WL 10679780, at *4 (E.D. La. Jan. 15, 2009) (noting “this rule is limited to parties to litigation”).
Likewise, the work-product doctrine generally shields from discovery materials prepared
by or for an attorney in preparation for litigation.10 Excluded from the work product doctrine are
materials assembled in the ordinary course of business or pursuant to public requirements unrelated
to litigation.11 If the document would have been created regardless of whether the litigation was
also expected to ensue, the document is deemed to be created in the ordinary course of business
and not in anticipation of litigation.12 Likewise, the work product doctrine does not protect
underlying facts relevant to litigation.13
The work product doctrine and the attorney-client privilege are very different with regard
to waiver. The attorney-client privilege exists to protect the confidential communications between
an attorney and client. Thus, it is generally waived by disclosure of confidential communications
to third parties.14 In contrast, the work-product protection exists to promote the adversary system
by safeguarding the fruits of an attorney's trial preparations from the discovery attempts of an
opponent.15 Therefore, the mere voluntary disclosure to a third person is insufficient in itself to
waive the work product privilege absent a substantial increase in the opportunity for potential
adversaries to obtain the information.16
10 FED. R. CIV. P. 26(b)(3)(A); Hickman v. Taylor, 329 U.S. 495, 511 (1947); Blockbuster Ent. Corp. v. McComb
Video, Inc., 145 F.R.D. 402, 403 (M.D. La. 1992).
11 FED. R. CIV. P. 26(b)(3) advisory committee’s note to 1970 amendment; El Paso, 682 F.2d at 542; Guzzino v.
Felterman, 174 F.R.D. 59, 63 (W.D. La. 1997) (quoting El Paso, 682 F.3d at 542); accord. 8 CHARLES A. WRIGHT,
MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE § 2024, at 503 (3d ed. 2010); see also Hill
Tower Inc. v. Dep’t of Navy, 718 F. Supp. 562, 566 (N.D. Tex. 1988) (“The mere fact this report deals with facts,
opinions, and recommendations that later may be the focus of litigation does not establish that there was the
expectation of litigation when this document was drafted.” (citations omitted)).
12 Global Oil Tools, Inc. v. Barnhill, No. 12-1507, 2013 WL 1344622, at *6 (E.D. La. Apr. 3, 2013) (quoting
Piatkowski v. Abdon Callais Offshore, L.L.C., No. 99-3759, 2000 WL 1145825, at *1 (E.D. La. Aug. 11, 2000) and
citing S. Scrap Material Co. v. Fleming, No. 01-2554, 2003 WL 21474516, at *6 (E.D. La. June 18, 2003)); see also
Brown v. Performance Energy Servs., LLC, No. 08-852, 2009 WL 10679000, at *1 (E.D. La. Jan. 12, 2009) (holding
that claims file documents filed before receipt of letter from plaintiff’s attorney were prepared in the ordinary course
of the insurer’s business of conducting, investigating and evaluating claims against its policies, and thus not protected
by the work-product doctrine).
13 See Upjohn Co., 449 U.S. at 399 (quoting Hickman, 329 U.S. at 511).
14 Shields v. Sturm, Ruger & Co., 864 F.2d 379, 382 (5th Cir. 1989).
15 Id.
16 Id.; Ecuadorian Plaintiffs v. Chevron Corp., 619 F.3d 373, 378 (5th Cir. 2010); see also In re Grand Jury
Subpoena, 220 F.3d 406, 409 (5th Cir. 2000).
A party withholding information based on privilege or work product must expressly make
the claim and provide an adequate description of the matter. FED. R. CIV. P. 26(b)(5)(A). The
“privilege log’s description of each document and its contents must provide sufficient information
to permit courts and other parties to ‘test[ ] the merits of’ the privilege claim.”17 It “should not
only identify the date, the author, and all recipients of each document listed therein, but should
also ‘describe the document’s subject matter, purpose for its production, and specific explanation
of why the document is privileged or immune from discovery.’”18 A court faced with an
inadequate privilege log may: (1) require a more detailed log; (2) find waiver; or (3) conduct an in
camera inspection.19 Most courts take a flexible approach, particularly when there is no evidence
of bad faith, finding waiver only for flagrant or willful failures.20
In this case, the Court has conducted an in camera review of the documents at issue. The
Court’s in camera review confirms that CivicSource properly invoked the attorney-client privilege
with regard to its internal communications identified as No. 1 on the privilege log. Likewise, it
properly invoked the attorney-client privilege as a representative of the City of Gretna with regard
to Nos. 2, 6, 8-12 on the privilege log. However, the attachments to Items 8, 9 and 11 are public
documents not protected by any privilege and must be produced. Similarly, the Court has already
addressed Item No. 2 on the City of Gretna’s log, which is the document addressed by my Order
dated April 28, 2025 (ECF No. 91), and it is duplicative of CivicSource’s Item No. 2. Gretna Item
17 BDO USA, 876 F.3d at 697 (quoting El Paso, 682 F.2d at 541; and citing N.L.R.B. v. Interbake Foods, LLC, 637
F.3d 492, 502 (4th Cir. 2011) (“When a party relies on a privilege log to assert these privileges, the log must ‘as to
each document . . . set[] forth specific facts that, if credited, would suffice to establish each element of the privilege
or immunity that is claimed.’”) (quoting Bowne, Inc. v. AmBase Corp., 150 F.R.D. 465, 474 (S.D.N.Y. 1993))).
18 Peacock v. Merrill, No. 08-01, 2008 WL 687195, at *3 (M.D. La. Mar. 10, 2008) (quoting Jones v. Hamilton Cnty.
Sheriff’s Dep’t, No. 02-808, 2003 WL 21383332, at *4 (S.D. Ind. 2003); and citing Compaq Comput. Corp. v. Packard
Bell Elecs., Inc., 163 F.R.D. 329, 338 (N.D. Cal. 1995)).
19 RPM Pizza, LLC v. Argonaut Great Cent. Ins. Co., No. 10-684, 2014 WL 12660120, at *4 (M.D. La. Jan. 14, 2014)
(quoting N.L.R.B. v. Jackson Hosp. Corp., 257 F.R.D. 302, 307–08 (D.D.C. 2009)).
20 Id. (citing United States v. Brit. Am. Tobacco (Invs.) Ltd., 387 F.3d 884, 890–91 (D.C. Cir. 2004); Novelty, Inc. v.
Mountain View Mktg., Inc., 265 F.R.D. 370, 381–82 (S.D. Ind. 2009) (foot-dragging and failure to comply with court’s
order showed willfulness and bad faith); Muro v. Target Corp., 250 F.R.D. 350, 365 (N.D. Ill. 2007), aff'd, 580 F.3d
485 (7th Cir. 2009)).
No. 4 is a protected communication between the City of Gretna and its client’s representative.
Gretna Item No. 8 appears to reflect attorney mental impression and strategic discussions amongst
defendants in this suit shortly after service in December 2022. As such, it is protected by from
discovery by the work product doctrine.
CivicSource Item Nos. 3, 4 and 5 and City of Gretna Item Nos. 5 and 7 are largely
duplicative of one another. Some of the communications in the email chain are protected while
others are not. Specifically:
• CivicSource Item No. 3’s first email dated 9/21/2022 is not protected from
discovery and must be produced. Likewise, the emails sent at 9/27/2022 11:13
AM and 9/27/2022 3:32 PM address only scheduling matters with no substance.
The subsequent emails, however, reflect attorney mental impression/work
product regarding defense of Plaintiff’s claims against the common defendants.
Thus, Item No. 3 must be produced, but the substance of the emails sent at
9/21/2022 12:27 PM, 9/21/2022 12:50 PM, 9/22/2022 10:44 AM, and
9/27/2022 4:34 PM may be redacted as same are not subject to discovery.
• CivicSource Item No. 4 is largely duplicative of Item No. 3, with one additional
email (10/5/2022 1:17 PM) from Dan Rebeor to W.J. Leblanc and AM Sledge.
That additional email is protected by attorney-client privilege and work
product. The remaining emails should be produced consistent with Item No. 3
above.
• CivicSource Item No. 5 contains emails dated 10/24/2022 3:11 PM and
10/27/2022 11:27 AM that appear to be communications with the court and all
counsel. These emails are not protected by any privilege or protection from
discovery. The emails dated 10/27/2022 11:54 AM, 10/27/2022 12:27 PM,
10/27/2022 12:42 PM, 10/27/2022 12:50 PM, 10/27/2022 1:20 PM, 10/31/2022
1:47 PM and 10/31/2022 2:13 PM, however, reflect attorney mental
impression/work product regarding defense of Plaintiff’s claims against the
common defendants. Item No. 5 thus must be produced, but the protected
emails may be redacted.
• In Gretna Item No. 5, the emails dated 9/21/2022 11:48 AM, 9/27/2022 11:13
AM, 9/27/2022 3:32 PM, 10/10/2022 4:39 PM, 10/11/2022 9:51 AM and
10/11/2022 10:32 AM are scheduling/non-substantive emails that do not
disclose any protected communication or work product. However, the emails
dated 9/21/2022 12:27 PM, 9/21/2022 12:50 PM, 9/22/2022 10:44 AM,
9/27/2022 4:34 PM, 10/5/2022 1:17 PM are protected from discovery. Thus,
Gretna Item No. 5 must be produced, but the protected emails may be redacted.
e Gretna Item No. 7 (like CivicSource Item No. 5) contains emails dated
10/24/2022 3:11 PM and 11/3/2022 11:44 AM that appear to be
communications with the court and all counsel. These emails are not protected
by any privilege or protection from discovery. However, the emails dated
11/3/2022 11:48 AM, 11/3/2022 12:37 PM, 11/3/2022 12:44 PM and 11/3/2022
12:50 PM reflect protected joint defense/work product efforts. As such, they
are not subject to discovery. Gretna Item No. 7 must be produced, but the
protected emails may be redacted.
CivicSource Item No. 7 is not an attorney-client privileged communication. Although the
email reflects a communication between counsel and the client representative, the communication
is merely a transmittal email forwarding a public document; it does not reflect any request for legal
advice. For the same reason, the City of Gretna’s Item Nos. 1, 3, and 6 are likewise transmittal or
scheduling issues that do not contain substantive communications within the protections of the
attorney-client privilege or work product doctrine. As such, these documents are subject to
production.
I. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Plaintiff Penemue, LLC’s Motion to Compel Complete Discovery
Responses from Defendant Raylyn Stevens, Director of Finance and Ex-Officio Tax Collector for
the City of Gretna is GRANTED IN PART AND DENIED IN PART as stated herein.
IT IS FURTHER ORDERED that Plaintiff Penemue, LLC’s Motion to Compel
CivicSource’s Compliance with Rule 45 Subpoena and for Jn Camera Inspection is GRANTED
IN PART AND DENIED IN PART as stated herein.
New Orleans, Louisiana, this 5th day of June, 2025.
oe Mull CURRAULT
UNITED STATES MAGISTRATE JUDGE