Ictech-Bendeck v. Waste Connections Bayou, Inc.

1

ELIAS JORGE “GEORGE” ICTECH-BENDECK, Plaintiff v. WASTE CONNECTIONS BAYOU, INC., ET AL., Defendants

Related Case:

FREDERICK ADDISON, ET AL., Plaintiffs v. LOUISIANA REGIONAL LANDFILL COMPANY, ET AL., Defendants

Civil Action Nos. 18-7889, 18-8071, 18-8218, 18-9312, 19-11133, 19-14512

United States District Court, E.D. Louisiana

March 6, 2024

SECTION “E” (5)

Applies to: All Cases

ORDER AND REASONS

SUSIE MORGAN UNITED STATES DISTRICT JUDGE

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 Connections Defendants” or “Defendants”).^[2] Presently, the only outstanding issues in these contested motions relate to documents involving Stearns, Conrad & Schmidt, Consulting Engineers, Inc. (“SCS Engineers”).^[3]

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. The Court's Order and Reasons issued on January 2, 2024 presents background relevant to the discovery motions.^[4]

On January 31, 2024, the Court held a video status conference (the “January 31 Conference”) at which “[t]he parties agreed to produce to each other invoices for all testifying expert witnesses, commencing with the inception of issues related to this litigation in 2018 through the present.”^[5] In the minute entry memorializing the January 31 Conference, the Court ordered the Waste Connections Defendants to “produce invoices for all testifying experts and for any work performed by SCS Engineers for Waste Connections Defendants or for counsel for the Waste Connections Defendants.”^[6] On February 12, 2024, counsel for the Waste Connections Defendants notified the Court and Plaintiffs that they produced to Plaintiffs 222 invoices from the Waste Connections Defendants' testifying expert witnesses and for work performed by SCS Engineers.^[7] The Waste Connections Defendants withheld in full or partially redacted 22 invoices from production “related to litigation support tasks and other non-produced work product by SCS [Engineers]” (the “Withheld Invoices”), and provided the withheld invoices to the Court for in camera review.^[8]

On February 28, 2024, the Waste Connections Defendants confirmed to the Court that certain documents gathered or prepared by SCS Engineers, which underlie the Withheld Invoices, are described in the privilege logs produced on November 13, 2023 and December 4, 2023 (respectively, the “November 13 Privilege Log” and “December 4 Privilege Log”). These groups of work product^[9] are identified as: Group #1, “Consultation with SCS as consulting expert for use in providing legal advice” (hereinafter “General Consulting Tasks”); Group #2, “Off-site survey of area odor sources, July and August 2019” (the “July/August 2019 Off-Site Survey”); Group #3, “November 2019 off-site odor samples” (the “November 2019 Off-Site Sampling Event”); and Group #4, “September 2019 site inspection by Dave Fisher (SCS)” (the “September 2019 Site Inspection”). The Waste Connections Defendants have withheld from Plaintiffs the documents included in the four groups of work product but provided them to the Court for in camera review. This Order and Reasons concerns the Withheld Invoices and the documents included in the four aforementioned groups of work product.

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.”^[10] “[I]nformation within the scope of discovery need not be admissible in evidence to be discovered.”^[11] 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.”^[12] “[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.^[13] 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.”^[14] If relevance is in doubt, the court should be permissive in allowing discovery.^[15] This broad scope is necessary given the nature of litigation, where determinations of discoverability are made well in advance of trial.^[16]Likewise, “broad discretion is afforded to the district court when deciding discovery matters,”^[17] and the Court must determine the scope of discovery “in light of the relevant facts of the particular case.”^[18]

While the discovery rules are accorded broad and liberal treatment to achieve their purpose of adequately informing litigants in civil trials,^[19] discovery does have “‘ultimate and necessary boundaries.'”^[20] 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).”^[21] Further, Rule 26(b) “has never been a license to engage in an unwieldy, burdensome, and speculative fishing expedition.”^[22] 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.^[23]

“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.”^[24] “Once the moving party establishes that the materials requested are within the scope of permissible discovery, the burden shifts to the party resisting discovery to show why the discovery is irrelevant, overly broad or unduly burdensome or oppressive, and thus should not be permitted.”^[25] “[T]he party asserting a privilege exemption from discovery . . . bears the burden of demonstrating the applicability of that privilege.”^[26] “Blanket assertions of privilege” are insufficient to carry a party's burden.^[27]

LAW AND ANALYSIS

In their motion, Plaintiffs seek to compel discovery of hundreds of documents.^[28]After the January 31 Conference, the Court ordered the Waste Connections Defendants to produce invoices for all testifying experts and for any work performed by SCS Engineers.^[29]In their February 12, 2024 letter, Defendants notified the Court and Plaintiffs that they withheld from production in full or partially redacted 22 invoices that are “related to litigation support tasks and other non-produced work product by SCS.”^[30] In the Withheld Invoices, SCS Engineers billed the Waste Connections Defendants for its work represented by documents included in the four groups of work product. The November 13 and December 4 Privilege Logs include documents included in all four groups. This Order and Reasons addresses discovery issues involving the Withheld Invoices and the withheld documents included in the foregoing groups of work product.

I. The Work Product Doctrine and Consulting Expert Work Product Privilege

The Waste Connections Defendants argue all Withheld Invoices^[31] and all documents in the November 13 and December 4 Privilege Logs included in Groups #1 through #4 are privileged based on the work product doctrine and/or consulting expert work product privilege.^[32] “Federal law governs . . . parties' assertions that certain information is protected from disclosure by the work product doctrine.”^[33] “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.”^[34] 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.”^[35] “Excluded from the work-product doctrine are materials assembled in the ordinary course of business.”^[36] The doctrine does not place work product outside the scope of discovery, but instead “creates a form of qualified immunity from discovery” for materials prepared in anticipation of litigation.^[37] “Rule 26(b)(3) protects documents prepared by a party's agent from discovery, as long as they were prepared in anticipation of litigation.”^[38]

The level of protection depends on whether the materials prepared in anticipation of litigation constitute “opinion” work product or non-opinion “fact” work product.^[39] The “mental impressions, conclusions, opinions or legal theories of an attorney” are opinion work product subject to a higher showing for production.^[40] “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).”^[41] 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.”^[42] “However, absent a showing of compell...