People of the State of California et al v. Kinder Morgan Energy Partners, L.P. et al, No. 3:2007cv01883 - Document 113 (S.D. Cal. 2010)
Court Description: ORDER granting in part and denying in part 101 Amended Motion to Compel Production of Documents and Disclosure of Information Related to Shell Oil Company's Attorney Marc R. Greenberg. By 10/26/2010, Plaintiffs shall produce to Defendants Working Group Privilege Log Document Numbers 104 and 113. Signed by Magistrate Judge William V. Gallo on 10/12/2010. (All non-registered users served via U.S. Mail Service)(leh)
Download PDF
<![CDATA[
People of the State of California et al v. Kinder Morgan Energy Partners, L.P. et al Doc. 113 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 PEOPLE OF THE STATE OF CALIFORNIA AND THE CITY OF SAN DIEGO, 13 Plaintiffs, 14 v. 15 KINDER MORGAN ENERGY PARTNERS, L. P., et al., 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Civil No. 07-1883-MMA(WVG) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO COMPEL PRODUCTION OF DOCUMENTS AND DISCLOSURE OF INFORMATION RELATED TO SHELL OIL COMPANY’S ATTORNEY MARC R. GREENBERG (Doc. No. 101) 18 19 Defendants Kinder Morgan Energy Partners, L.P., et al., 20 (hereafter “Defendants”) have filed a Motion to Compel Production of 21 Documents 22 Company’s 23 Plaintiffs People of the State of California and the City of San 24 Diego (hereafter “City” or “Plaintiffs”) have filed an Opposition to 25 the Motion. Defendants have filed a Reply to Plaintiff’s Opposition. 26 The Court, having reviewed the Motion, Opposition, the Reply, having 27 heard oral argument on the motion, and having reviewed in camera the 28 documents that are the subject of Defendants’ Motion, and GOOD CAUSE And Disclosure Attorney Marc Of R. Information Greenberg 1 Related to (hereafter Shell Oil “Motion”). 07cv1883 Dockets.Justia.com 1 APPEARING, HEREBY GRANTS in part and DENIES in part Defendants’ 2 Motion. 3 I 4 FACTUAL BACKGROUND 5 In 2003, Shell Oil Company (hereafter “Shell”) entered into 6 settlement 7 Plaintiffs in which Plaintiffs would claim that Shell had liability 8 for the clean-up of contamination that Shell acknowledged emanated 9 from its operations. Shell was represented by Marc R. Greenberg 10 negotiations to resolve potential litigation with (hereafter “Greenberg”). 11 During the settlement negotiations, Greenberg was employed by 12 the law firms Baker & Hostetler, and later, Keesal, Young & Logan. 13 The City was represented by Grace Lowenberg (hereafter “Lowenberg”) 14 and Frank Devaney (now Judge Devaney)(hereafter “Devaney”). 15 During the negotiations between the City and Shell regarding 16 Plaintiffs’ potential claims against Shell, Greenberg offered to 17 represent the City in litigation against Defendants. 18 In order to determine whether the City would retain Greenberg 19 to pursue litigation against Defendants, the City sought from 20 Greenberg oral and written legal advice regarding potential claims 21 against Defendants for Defendants’ alleged contamination of 166 22 acres 23 Property”). On October 24, 2004, the City and Shell entered into a 24 Settlement Agreement regarding Shell’s liability for contamination 25 at the Property. under and surrounding Qualcomm Stadium (hereafter “the 26 Defendants seek production of nine documents that the City 27 has withheld from production based on the attorney-client privilege 28 and work product doctrine. These documents are communications 2 07cv1883 1 between 2 employees of the City who were working with Lowenberg and/or 3 Devaney. Greenberg and Lowenberg and/or Devaney and/or other The Court has reviewed the documents in camera. 4 II 5 ANALYSIS 6 7 A. California Law Applies to Plaintiffs’ Assertion of the Attorney-Client Privilege Plaintiffs’ First Amended Complaint contains causes of action 8 for Public Nuisance, pursuant to California Code of Civil Procedure 9 §731, and California Civil Code §§ 3479 and 3480; Private Nuisance 10 pursuant to California Civil Code §§ 3479, 3480 and 3481; Trespass, 11 Negligence, Violation of California Health & Safety Code §25249.5 12 (Drinking Water and Toxic Enforcement Act of 1986); Violation of 13 California Business & Professions Code § 17200, et seq.; and 14 Declaratory Relief. 15 Federal Rule of Evidence 501 states in pertinent part: 16 ...(I)n civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. 17 18 19 20 Here, Plaintiffs’ causes of action arise under California 21 law. Therefore, pursuant to Fed. R. Evid. 501, the City’s assertion 22 of the attorney-client privilege is determined in accordance with 23 California law. 24 B. Attorney-Client Privilege 25 It well settled under California law that the attorney-client 26 privilege applies to confidential communications during preliminary 27 negotiations with an attorney even if employment of the attorney is 28 declined. Rosso, Johnson & Ebersold v. Superior Court, 191 Cal. App. 3 07cv1883 1 3d 1514, 1518 (1987)[citing Estate of Dupont, 60 Cal. App. 2d 276, 2 287-288 (1943)]. “The fiduciary relationship existing between lawyer 3 and client extends to preliminary consultations by a prospective 4 client with a view to retention of the lawyer, although actual 5 employment does not result.” 6 v. 7 (1999)[citing Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 8 1311, 1319 (7th Cir. 1978)]. 9 supported by California Evidence Code § 951, which states in 10 pertinent part: “...(C)lient means a person who, directly or through 11 an authorized representative, consults a lawyer for the purpose of 12 retaining the lawyer or securing legal service or advice from him in 13 his professional capacity...” (emphasis added). Speedee Oil Changes People ex. rel. Department of Corps. Systems, 20 Cal. 4th 1135, 1147-1148 This legal principle is further 14 Here, Lowenberg states in her Declaration that in order to 15 determine whether she would recommend retaining Greenberg’s legal 16 services, the City needed to evaluate its claims against Defendants, 17 as well as Greenberg’s and his experts’ qualifications. 18 the City sought from Greenberg, and Greenberg provided, verbal and 19 written legal advice regarding the City’s potential claims against 20 Defendants for Defendants’ alleged contamination of the Property and 21 potential damages arising therefrom. The City also sought and 22 received from Greenberg legal advice regarding the potential for Dr. 23 Richard Jackson1/ to be the City’s expert environmental consultant. 24 Further, Lowenberg states that the City expected and understood that 25 its communications to Greenberg, and Greenberg’s communications to Therefore, 26 27 28 1/ Although not entirely clear from the papers submitted by counsel, Dr. Jackson appeared to have been Judge Robert Altman’s technical advisor in a mediation Judge Altman conducted in the dispute between Shell and Defendants. 4 07cv1883 1 it, regarding potential claims against Defendants, were made in 2 confidence 3 Similarly, Greenberg states in his Declaration that at the time his 4 communications were made to Lowenberg and Devaney, the City was 5 evaluating who to retain to pursue its claims against Defendants. 6 Further, Greenberg states that he had several meetings with Devaney 7 in which Defendants’ liability was discussed as well as various 8 possible fee arrangements that he could offer the City should the 9 City retain him for its suit against Defendants. Ultimately, the 10 City hired another attorney to represent it in its suit against 11 Defendants (this litigation). Additionally, Greenberg states that 12 many of the documents at issue in this Motion were communications 13 between him and the City when the City was evaluating its case 14 against Defendants and whether to retain him to pursue litigation 15 against Defendants. 16 documents at issue are his work product. and protected by the attorney client privilege. Finally, Greenberg states that some of the 17 Defendants assert that the documents are not protected by the 18 attorney-client privilege, based upon the dates of the documents 19 provided on the City’s privilege log, and upon statements made by 20 attorneys for the City. 21 the communications at issue occurred during the time that Greenberg 22 identified himself as attorney for Shell (prior to, during and after 23 the mediation before Judge Altman). Additionally, Greenberg and the 24 City entered into an agreement that released Shell from claims that 25 the City had against Shell arising from the contamination at the 26 Property. 27 the attorney-client privilege is implausible because if Plaintiffs’ Further, Defendants contend that many of Therefore, Defendants contend that any such assertion of 28 5 07cv1883 1 explanation is accepted, Greenberg committed ethical violations, 2 which appears to be unlikely.2/ 3 The Court agrees in part with the City regarding its 4 characterization of the documents at issue. It is clear that during 5 the negotiations between the City and Shell regarding the City’s 6 potential claims against Shell, Greenberg offered to represent the 7 City 8 attorneys sought and received oral and written legal advice from 9 Greenberg on several matters pertaining to potential claims against 10 Defendants in order to determine whether the City should retain 11 Greenberg. The City’s attorneys considered the communications to be 12 confidential. Greenberg’s characterization of the communications 13 reveal that the communications were intended to be confidential and 14 were made at a time when the City was evaluating whether to hire him 15 for litigation against Defendants. 16 after in camera review, that some, but not all, of the documents are 17 protected 18 Specifically, document numbers 116,3/, 191, 192, 193, 282 and PLF 19 Privilege Log Entry 121 are protected from disclosure. in potential from litigation disclosure against by Defendants. The City’s Therefore, the Court concludes, the attorney-client privilege. 20 C. Work Product 21 Plaintiffs argue that document numbers 104, 113 and 116 are 22 protected from disclosure by the work product doctrine. 23 contend that these documents were prepared by Greenberg in anticipa- 24 tion of litigation against Defendants in connection with the City’s Plaintiffs 25 26 27 28 2/ The Court does not express an opinion regarding whether Greenberg committed ethical violations. 3/ All references to document numbers are to the Working Group Privilege Log, as noted at page 5 of Defendants’ Points and Authorities in Support of the Motion to Compel (Doc. # 101-1), unless otherwise noted. 6 07cv1883 1 evaluation of whether to hire Greenberg to represent it in an action 2 against Defendants. 3 Fed. R. Civ. Pro. 26(b)(3), the documents are protected from 4 disclosure. Therefore, the City concludes that pursuant to 5 Defendants argue that Plaintiffs can not claim the documents 6 in issue are protected from disclosure by the work product doctrine 7 because they did not have an attorney-client relationship with 8 Greenberg. 9 10 Fed. R. Civ. Pro. 26(b)(3)(A) and (B) state in pertinent part: 11 15 (A) Ordinarily, a party may not discover documents... that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney... (B) If the court orders discovery of those materials, it must protect against disclosure of the mental impressions, conclusions, opinions or legal theories of a party’s attorney or other representative concerning the litigation. 16 The Court disagrees with Plaintiffs’ assertion that document 17 numbers 104, 113 and 116 are protected from disclosure by the work 18 product doctrine. The documents were not prepared by Greenberg in 19 anticipation of the City’s litigation against Defendants. 20 the 21 inquiries in connection with the City’s evaluation whether to hire 22 Greenberg for litigation against Defendants. 23 concludes, after in camera review, that document numbers 104, 113 24 and 116 are not protected from disclosure by the work product 25 doctrine. 12 13 14 documents are merely Greenberg’s responses 26 Neither the City’s Therefore, the Court D. Confidential Settlement Discussions 27 to Instead, 28 Plaintiffs nor Defendants discuss whether the documents in issue may be protected from disclosure because they 7 07cv1883 1 embody confidential communications made with respect to settlement 2 negotiations. 3 Communications made in furtherance of settlement negotiations 4 are protected from third party discovery because of the public 5 policy favoring confidentiality of such communications. Phoenix 6 Solutions v. Wells Fargo Bank, 254 F.R.D. 568, 583 (N.D. Cal. 7 2008)[citing Goodyear v. Chiles Power Supply, 332 F.3d 976, 980 (6th 8 Cir. 2003)]. There is a well-established privilege relating to 9 settlement discussions. Cook v. Yellow Freight, 132 F.R.D. 548, 554 10 (E.D. Cal. 1990) overruled on other grounds in Jaffee v. Redmond, 11 518 U.S. 1 (1996). 12 confidentiality of attempts to resolve disputes. U.S. v. Contra 13 Costa County Water Dist., 678 F.2d 90, 92 (9th Cir. 1982). A strong public policy exists that favors the 14 Here, some of the documents in issue are communications 15 between Greenberg and the City regarding Shell’s potential liability 16 to the City for contamination of the Property. These documents 17 embody some of the settlement negotiations that occurred between 18 Greenberg, on behalf of Shell, and the City’s attorneys. Therefore, 19 the Court concludes, after in camera review, that some of the 20 documents in issue are settlement communications that are confiden- 21 tial and protected from disclosure to third parties. Specifically, 22 document numbers 190, 191, 192 and 193 are protected from disclo- 23 sure. 24 As a result of the foregoing, the Court ORDERS: 25 1. With respect to Working Group Privilege Log, document 26 number 104, the document is not protected from disclosure and shall 27 be produced. 28 8 07cv1883 1 2. With respect to Working Group Privilege Log document 2 number 113, the document is not protected from disclosure and shall 3 be produced. 4 3. With respect to Working Group Privilege Log document 5 number 116, the document is not protected from disclosure by virtue 6 of the work product doctrine but is protected from disclosure by the 7 attorney-client privilege and shall not be produced. 8 4. With respect to Working Group Privilege Log document 9 number 190, the document is protected from disclosure because it is 10 a confidential settlement communication, and shall not be produced. 11 5. With respect to Working Group Privilege Log document 12 number 191, the document is protected from disclosure, because it is 13 in part a confidential settlement communication, and in part, by the 14 attorney-client privilege, and shall not be produced. 15 6. With respect to Working Group Privilege Log document 16 number 192, the document is protected from disclosure because it is 17 in part a confidential settlement communication, and in part by the 18 attorney-client privilege, and shall not be produced. 19 7. With respect to Working Group Privilege Log document 20 number 193, the document is protected from disclosure because it is 21 in part a confidential settlement communication, and in part by the 22 attorney-client privilege, and shall not be produced. 23 8. With respect to Working Group Privilege Log document 24 number 25 attorney-client privilege, and shall not be produced. 26 282, the document is protected from disclosure by the 9. With respect to PLF Privilege Log entry number 21, the 27 document 28 privilege, and shall not be produced. is protected from disclosure 9 by the attorney-client 07cv1883 1 On or before October 26, 2010, Plaintiffs shall produce to 2 Defendants Working Group Privilege Log document numbers 104 and 113. 3 IT IS SO ORDERED. 4 5 DATED: October 12, 2010 6 7 Hon. William V. Gallo U.S. Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 07cv1883
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
