Buchanan et al v. Sterling Construction Company Incorporated et al, No. 4:2016cv03429 - Document 107 (S.D. Tex. 2018)
Court Description: ORDER granting in part and denying in part 67 MOTION to Compel Defendants to Produce Documents on Sterling's Privilege Log. Defendants must produce emails listed in the privilege log sent by or received by plaintiffs by 3/23/2018. (Signed by Magistrate Judge Stephen Smith) Parties notified.(gclair, 4)
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Buchanan et al v. Sterling Construction Company Incorporated et al Doc. 107 United States District Court Southern District of Texas ENTERED IN THE U NITED STATES D ISTRICT COU RT FOR THE SO UTHERN DISTRICT O F TEX AS HO USTON D IVISION March 12, 2018 David J. Bradley, Clerk M ARK BUCHAN AN and DALE HO OVER Plaintiffs, CivilA ction No.4:16-cv-3429 VS. JU RY STERLING CO NSTRUCTION COM PA NY IN CORPORATED, TEX AS STERLING CONSTRUCTION COM PA NY ,and M ILTON SCOW D efendants. j 5 Before the Courtis plaintiffs'motion (Dkt.67) asking the Courtto overrule certain claim s of privilege asserted by Sterling Construction Com pany,Inc.and Texas Sterling Construction,Co.,and to order the defendants to produce approxim ately additional docum ents. Plaintiffs have narrow ed their requests to three categories of em ails:1 1) 84emailsauthoredbyorreceivedbyplaintiffs; 2) 19emailsrelatedtotheSiriusInvestigation; 3) 54emailsrelatedto theNrlW andCTMC projects.2 A ddressing the firstcategory,defendants have refused to produce em ails authored by orreceived by plaintiffs when they were employed by defendantsbecause they w ere 'Defendantsthirdamendedprivilegelog(Dkt.87-1)list241emailsandattachmcntsthatwerewithheld,alongwith two pagesofhandwritten notes.Plaintiffsdo notseekproductionofthehandw ritten notes. 2Defendantsauthoredorreceived32emailsdiscussingtheseprojects,sothereissomeoverlapbetweencategory1 and 3. Dockets.Justia.com * underthe tûum brella''ofdefendants'privilege.D efendantsinsistthe em ails are privileged attorney com m unications and/or attorney work product.The burden is on defendants to show the attorney client privilege or the w ork productprotection is applicable.United States v.Rodriquez,948 F.2d 914,916 (5th Cir.1991) (stating that the burden of establishing the attorney-client privilege always rests On the party claiming it). Defendants have pointed to no authority to supporttheir insistence that a party cannot obtain copies of em ails he him self authored or received m erely because that com m unication involved an attorney. The attorney-clientprivilege ltprotects disclosure of confidentialcom m unications between the clientand attorney.''Upjohn Co.v.United States,449 U.S.383,389,101 S.Ct.677,66L.Ed.2d584(1981);lnreGrandJWryProceedings,517F.2d666,670(5th Cir.1975)(çûthecommunication relatesto afactofwhich theattorneywasinformed (a) by his dient (b) without the presence of N/rcngcrx''ltemphasis added).Defendants' argum entfails atthis step.Because plaintiffs w ere parties to the com m unications,those com m unications were not confidential as to them . Even if these em ails m ight be protected by the w ork productprivilege,thatprivilege w as necessarily w aived for any em ailauthored by orreceived by plaintiffsbecause itw as actually disclosed to them .See Ferko v.Nat1Ass' n forStock CarAuto Racing,Inc.,218 F.R.D.125,136 (E.D.TeX. 2003)(noting thatwork productprivilege iswaived ifthework-productis disclosed to adversaries). 3 Plaintiffs next seek production of em ails regarding the Sirius investigation because tisterling and TSC have put Sirius Solutions' investigation at issue as their purported reason for tenninating Plaintiffs ....''Plaintiffs contend thatdefendants are ûthidking) communications with a third party aboutthat investigation,''because itwill show that ûksirius w as acting on the instructions of Sterling.'' The Court agrtes that plaintiffs are entitled to discover any com m unications m ade to or from Sirius aboutits investigation into the $5,000 advance to Simon Diaz. Defendants claim they have produced al1such com m unications,and thatis supported by the privilege 1og entries.The entries identified by plaintiffs include 15 em ailsbetw een defendants and outside counsel atthe law firm of Andrews & Kurth,3 em ails from Sterling's in-house counsel,and one email(Priv.ld 106),between Sterling'semployees;none oftheseemailswere sentto or from Siriusorany otherthird person. Because these com m unications did not include a third party, the attorney client privilege w as notw aived for the em ails sentto orreceived from Sterling's attorney.The Courtdeclinesto findûtsubjectmatter''waiverextendingtothesecommunicationswhen they w ere not m ade to or from Sirius. The fact that defendants were com m unicating internally, or w ith their attorney, about the investigation does not support plaintiffs' contention thattûthe Defendants or theirattorneysw ere assisting in drafting or m odifying the report.'' 3The Courtnotesthatitis notentirely clearwhatdocum entsplaintiffsseek in thiscategory because theirmotion (Dkt.67)andreply(Dkt.95)containdifferentlists,withsomeoverlap,ofdocumentsontheprivilegelogthatfallin thiscategory.Thecourtassumesplaintiffsseekonlythematerialsidentified inthemostreccnt(Dkt.95)filing as thatreplyktreducejd)theissuesfortheCourt'sconsideration.'' The rem aining em ailis notprotected by the attorney-clientprivilege,butinstead is covered by the w ork productprivilege.ltis notsentto or from an attorney,nor does it indicate in any w ay thatthe author,Kevin M anning,is relaying advice oran opinion from an attorney.Rather,itis a discussion ofSterling's strategy in the litigation involving Star Operations.Because itcontains the çtm entalim pressions,conclusions,opinions,or legal theories ofan attorney orotherrepresentative ofa party,''itqualifies forprotection under theworkproductprivilege.InreKaiserAluminum & Chem.Co.,214 F.3d586,593(5th Cir.2000).Plaintiffshavenotestablishedtheprivilegewaswaived forthisemail,nordo they explain how itisrelevantto the Sirius investigation. Thefinalcategory isemailsrelated to the NTTA andCTM C projects.Plaintiffs argue thatdefendantshavew aived any claim s ofprivilege regarding these em ailsbecause they disclosed other com m unications on those topics. They insist that defendants produced draft memoranda and communications regarding the NrlW projects and thereforewaived privilege forany communicationrelated to theNTTA project.They also contend that defendants' experts claim there was :ûsufficient legal docum entation to support the claim accounting''and these em ails are needed to test the truth of these opinions.Plaintiffs'argum entis ttlo broad. W hen the privilege is w aived by using thatinform ation in self-defense,çlfairness dictates that the w aiver should be narrowly construed'' and only applies to com municationson the specific topic ofthe representation actually disclosed.Apex A/i/n. Fundv.N-Grp.Sec.,841F.Supp.1423,1430(S.D.TeX.1993).Here,thespecifictopics identified by plaintiffs as the basis forthe w aiverare the NR' T A m em oranda prepared by M ark Buchanan and Vernon Howerton.See Dkt.67,p.11;Dkt.95,p.6.A l1ofthe em ails identifiedbyplaintiffsasrelatedtotheNRv1'A project,exceptforone(Priv.Id.80),were sent by or to plaintiffs and w illbe produced as discussed earlier.The rem aining em ail w as sentsix weeks after the Howerton m em orandum w as prepared and appears to have no directconnection to thatissue,so itw illnotbe produced.For the em ails identified by plaintiffs asrelating to the CTMC project,there are eighteen entrieswhich were not w ritten by orsentto plaintiffs.4They are each identified as a Eûcom m unication regarding settlem ent strategy related to CTM C.''A ssum ing defendants w aived any privileges for the m em oranda thathave been disclosed,these em ails are unrelated to those m em oranda. They w ere prepared afterthe m em oranda and discuss settlem entstrategy. The finaltw o item splaintiffsseek to compelare redacted ttdispute registerentries'' preparedbyM ichaelDuffyrevealinginformationforonlythreeprojects.(Priv.ld.160& 184).Plaintiffs argue these entries are relevantto the question ofwhether there was sufficient legal support for the claim accounting because they will show if there was ttprogress m ade on recovering any ofthe claim s atissue in thiscase.''They correctly note thatthese em ails are neither sentto nor received from an attorney so the attorney-client privilege does not apply.Plaintiffs failed to address defendants' assertion of the w ork product privilege over these m aterials. D efendants described these em ails to be ûkcom m unication regarding ongoing litigation m atters,arbitrations and otherdisputes and deadlines/nextstepsrclated thereto.''Plaintiffshave notargued,norshow n,thatthe work productprivilege w as waived for the tûdispute registries,''orthatthe inform ation sought 4priv. Id.234-35,249,260-61,263,266,269-70,273-74,294-95,297-99,301,303. can only be obtained from these m aterials.Regarding plaintiffs'argum entthat it needs these em ails to lltest''the truth of the experts'position,they have not shown thatthese em ails or tûdispute registries''are the type of ttlegaldocum entation to supportthe claim accounting''the expertswere discussing. Accordingly,the Courtgrants in part,and deniesin part,plaintiffs'motion (Dkt. 67). Defendants are ordered to produce al1em ails listed in the privilege log sentby or received by plaintiffs by Friday,M arch 23,2018; A1lotherrequested reliefisdenied. SignedatHouston,TexasonMarch lQ ,2018. Step en W m .Sm ith United State M agistrate Judge
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