United States v. Osage Wind, LLC, Case No. 14-CV-704-GKF-JFJ

UNITED STATES OF AMERICA, Plaintiff,OSAGE MINERALS COUNCIL, Intervenor-Plaintiff, v. OSAGE WIND, LLC, et al., Defendants.

Case No. 14-CV-704-GKF-JFJ

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

February 13, 2021

OPINION AND ORDER

Before the Court are outstanding issues presented by United States' Motion to Compel Discovery (ECF No. 175) and Intervenor Plaintiff Osage Minerals Council's Motion to Compel Production of Documents (ECF No. 183).

I. Background

By Opinion and Order dated January 16, 2021 ("1/16/21 Order") (ECF No. 210), the Court held that Defendants waived privilege for all challenged entries on the FAPL "concerning the limited subject matter of the 'at issue' detailed legal analysis and advice relied on by Defendants - namely, analysis and advice regarding whether excavation for the Project constitutes mining and therefore required a lease or permit under the relevant regulations." ECF No. 210 at 17.¹ The Court explained the waiver "does not extend to all privileged entries that may be relevant to subjective good faith; the waiver extends to the legal analysis and advice placed at issue." Id. The Court compelled production of documents where the FAPL provided adequate information for the Court to conclude the documents fell within the scope of the waiver. Id. at 18. The Courtcompelled both attorney-client communications and work product falling within the scope of the waiver. See id. at 17 & n. 8, 9.

The Court ordered in camera submission of the remaining documents for the purpose of determining: (1) whether they fall within the scope of the waiver; and (2) if not, whether they qualify for any of the privileges asserted by Defendants on the FAPL. Defendants submitted the documents in camera by the required deadline, including a numbered index.²

II. Legal Standards

For the reasons explained in the 1/16/21 Order, the Court applies federal privilege law in this federal question action. See ECF No. 210 at 8 & n.5. For most challenged entries remaining at issue, Defendants assert both the attorney-client privilege and work product doctrine. For some challenged entries remaining at issue, Defendants also assert the "common interest rule."

A. Attorney-Client Privilege

The attorney-client privilege is the "oldest of the privileges for confidential communications known to the common law," and "[i]ts purpose 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." In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1185 (10th Cir. 2006) (internal quotations omitted). "The privilege serves the client's need for legal advice, but it also serves the attorney's need to receive complete information in order to give the proper advice." Id. "[A] critical component of the privilege is whether the communication between the client and the attorney is made in confidence of the relationship and under circumstances from which it may reasonably be assumed that the communication will remain inconfidence." Id. (internal quotation omitted). Generally, the attorney-client privilege and other privileges should be strictly construed and accepted "only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth." Id. (internal quotations omitted). Further, although the protection shields privileged communications, it does not protect the underlying facts contained within those communications. Upjohn Co. v. United States, 449 U.S. 383, 395-96 (1981).

A lawyer's mere involvement in a communication does not render the communication privileged. In re Grand Jury Proceedings, 616 F.3d 1172, 1182 (10th Cir. 2010). Instead, the communication must be related to legal strategy or advice sought by the client. Id. See In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. 669, 674 (D. Kan. 2005) (stating that a communication "must be a confidential communication involving the requesting or giving of legal advice" to be protected). The privilege extends to the client's communications with in-house counsel as well as outside attorneys, but the privilege "does not apply where the legal advice is merely incidental to business advice." In re Universal Serv. Fund Tel. Billing Practices Litig., 232 F.R.D. at 674. Instead, "[l]egal advice must predominate for the communication to be protected." Id. at 675.

B. Work Product Doctrine

"At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case." United States v. Nobles, 422 U.S. 225, 238 (1975). "Because the work product doctrine is intended only to guard against divulging the attorney's strategies and legal impressions, it does not protect facts concerning the creation of work product or facts contained within work product." Resolution Trust Corp. v. Dabney, 73 F.3d 262, 266 (10th Cir.1995).

The work product doctrine is governed by Federal Rule of Civil Procedure 26(b)(3)(A). The rule provides that "[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party's attorney, consultant, surety, indemnitor, or agent)." Fed. R. Civ. P. 26(b)(3)(A). But work product materials may be discovered if: (1) they are otherwise discoverable under Rule 26(b)(1), i.e., relevant and proportional to the needs of the case; and (2) "the requesting party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means." Fed. R. Civ. P. 26(b)(3)(A)(i) and (ii). If the Court orders discovery of protected work product, it still must "protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative concerning the litigation." Id. Therefore, Rule 26(b)(3)'s protections draw a distinction between (1) "ordinary work product," which is discoverable upon a showing of need and undue hardship; and (2) "opinion work product," which "receives heightened or special protection." Lindley v. Life Investors Ins. Co. of Am, 267 F.R.D. 382, 393 (N.D. Okla. 2010).

"Establishing work-product protection often depends on a showing that there was a reasonable threat of litigation and that the motivation for creating the document in question was that threat." Accounting Principals, Inc. v. Manpower, Inc., No. 07-CV-636-TCK-PJC, 2009 WL 2252123, at *4 (N.D. Okla. July 28, 2009). Although litigation need not be imminent for a document to be protected, the primary motivation for creating the document must be to aid in future litigation. See id. In making this determination, a "key inquiry" is whether the document would have been created regardless of whether litigation was threatened or imminent. Id. Where the document is prepared by a non-lawyer, a relevant consideration is whether the non-lawyer consulted with attorneys in its preparation. Id. If documents are generated or assembled in theordinary course of business or for other non-litigation purposes, they are generally discoverable. See Lindley, 267 F.R.D. at 394.

C. Common Interest Doctrine

"The common-interest doctrine is an exception to [privilege] waiver that may protect information and documents shared outside of the attorney-client relationship." Lawson v. Spirit AeroSystems, Inc., 410 F. Supp. 3d 1195, 1209 (D. Kan. 2019). The doctrine "normally operates as a shield to preclude waiver of the attorney-client privilege when a disclosure of confidential information is made to a third party who shares a community of interest with the represented party." Frontier Ref., Inc. v. Gorman-Rupp Co., 136 F.3d 695, 705 (10th Cir. 1998); see also In re Qwest Commc'ns Int'l Inc., 450 F.3d 1179, 1195 (10th Cir. 2006) (explaining that common interest rule applies where the "disclosure advances the representation of the party and the attorney's preparation of the case").

To benefit from the common interest rule, the party asserting privilege generally must show: "(1) the documents were made in the course of a joint-defense effort; and (2) the documents were designed to further that effort." In re Grand Jury Proceedings, 156 F.3d 1038, 1042-43 (10th Cir. 1998). Courts have explained that "no written agreement is required," and that an agreement "may be implied from conduct and situation, such as attorneys exchanging confidential communications from clients who are or potentially may be codefendants or have common interests in litigation." United States v. Gonzalez, 669 F.3d 974, 979 (9th Cir. 2012). Further, there need not be formal litigation in progress for the common interest doctrine to take effect. United States v. Schwimmer, 892 F.2d 237, 244 (2d Cir. 1989) (stating that "it is . . . unnecessary that there be actual litigation in progress for the common interest rule of the attorney-client privilege to apply"). See generally Restatement (Third) Of The Law Governing Lawyers, § 76 (2000) (explaining that rule "permits persons who have common interests to coordinate their positionswithout destroying the privileged status of their communications with their lawyers" and that it "relaxes the requirement of confidentiality . . . by widening circle of persons to whom client may disclose privileged communications").

III. Analysis

A. Global Rulings

1. Work Product - Other Actual or Threatened Litigation Regarding the Project

Dating at least back to 2011, the Project was the subject of various actual and threatened litigation regarding the Project in federal court, state court, and before administrative agencies. Beauregard Declaration, ECF No. 186-1 at ¶¶ 15-24 and attached legal...