Background

This lawsuit arises out of a motor vehicle accident that occurred on September 13, 2016 on Louisiana Highway 23. Mr. Fitch alleges that he was a guest passenger in a 2001 Chevy Tahoe being operated by defendant Larry Mallery when the vehicle came upon an electrical wire across the highway that got tangled in the trailer of the vehicle. Mr. Fitch alleges that this caused the vehicle to swirl around and jack knife on the highway resulting in physical injury. According to Mr. Fitch, two utility poles owned by Entergy broke in connection with the incident. The condition of the poles and whether they were so decayed or rotten that their structural integrity failed and caused the accident is at issue in this lawsuit. Mr. Fitch points out that the police report indicates that one of the deputies observed that “the pole broke from the very top like it may have been a rotten piece of the pole.” Mr. Fitch has learned that following the accident, Entergy employees removed the entirety of one pole and portions of the second pole from the scene and disposed of them without conducting any formal inspection of the poles. The remaining portion of one of the poles was discovered approximately one year after the incident when an inspection of the scene was conducted by Entergy employees following the filing of this lawsuit.

At issue in the present motion are two documents that Entergy has withheld as privileged and/or non-responsive. The first document is listed on Entergy’s Privilege log as a “Claims Management – Liability PowerPoint Presentation” dated January 3, 2003. Entergy describes it as protected from discovery as an attorney/client communication, as work product, and as proprietary company information. The other document is a memorandum that was identified by Entergy’s corporate representative Larry Wayne Phillips at Entergy’s Rule 30(b)(6) deposition. Phillips described this memorandum as a “word document” that “came with” the PowerPoint presentation, both of which he reviewed in advance of the deposition. Mr. Fitch argues that these two documents are not protected by the attorney-client privilege or the work product doctrine. Further, Mr. Fitch argues that even if they are, they are discoverable because Mr. Phillips relied upon these documents to refresh his recollection in testifying on behalf of Entergy.

Entergy opposes, insisting that the documents are privileged. Entergy says that the “word document” is an internal legal memorandum that was drafted in coordination with an attorney in the Legal Department[1] for the specific purpose of providing legal advice. It says the document was not used as a training tool and was not disseminated beyond the Legal and Claims Departments. Entergy says this document is not responsive to any of Mr. Fitch’s discovery requests. As to the PowerPoint, Entergy says its source material was drafted, reviewed and/or authorized by an attorney in the legal department of Entergy Services, Inc. (“ESI”),[2] a company that provides a variety of services to Entergy operating companies. Entergy does not specify who created the PowerPoint or which specific individuals or categories of employees received training with the PowerPoint. Entergy says the PowerPoint provides internal legal advice to a client. Entergy also argues that both documents are protected as opinion work product because they consist of legal theories and opinions of the ESI legal department. Entergy argues that the work product doctrine can apply even when litigation is not imminent. Entergy has submitted the two documents for in camera review.

*2 Entergy also argues that it did not waive the attorney-client or work-product privilege by showing the document to Mr. Phillips in advance of Entergy’s corporate deposition. Entergy admits that Mr. Phillips reviewed the documents, but it insists that he did not rely on them in providing testimony. Instead, Entergy says, Mr. Phillips’ testimony was informed by his conversations with individuals at Entergy in preparation for the Rule 30(b)(6) deposition.

Law and Analysis

“[T]he attorney-client privilege protects communications made in confidence by a client to his lawyer for the purpose of obtaining legal advice.” Hodges, Grant & Kaufmann v. U.S. Gov’t, Dep’t of the Treasury, I.R.S., 768 F.2d 719, 720 (5th Cir. 1985). The purpose of the privilege:

Upjohn Co. v. United States, 449 U.S. 383, 389 (1981). For a communication to be protected under the privilege, the proponent “must prove: (1) that he made a confidential communication; (2) to a lawyer or his subordinate; (3) for the primary purpose of securing either a legal opinion or legal services, or assistance in some legal proceeding.” United States v. Robinson, 121 F.3d 971, 974 (5th Cir. 1997) (emphasis in original). Communications by the lawyer to the client are protected “if they would tend to disclose the client’s confidential communications.” Hodges, 768 F.2d at 720. “The burden of demonstrating the applicability of the privilege rests on the party who invokes it.” Id.

Entergy argues that training materials like those appearing in the PowerPoint can be protected by the attorney-client privilege. It cites Santer v. Teachers Ins. & Annuity Ass’n, where a district court in Pennsylvania found that training the defendant “provided to its claims department representatives concerning bad faith insurance practices, insurance litigation in general, and privacy rights” was protected by the attorney-client privilege. No. CIVA 06-CV-1863, 2008 WL 821060, at *1 (E.D. Pa. Mar. 25, 2008). The court in Santer determined the materials had been prepared by in-house counsel to answer “their clients’ questions concerning how statutes and court decisions in the areas of bad faith, insurance litigation, and privacy affect the way [the defendant] handles claims.” Id. The materials had been presented by counsel to the defendant’s claims representatives. Id.

Entergy also cites In re Currency Conversion Antitrust Litig., where the Southern District of New York considered whether certain documents, including “training materials and information about the arbitration provisions that was to be conveyed to consumers,” were protected by the attorney-client privilege. No. 05 CIV. 7116 WHP THK, 2010 WL 4365548, at *3 (S.D.N.Y. Nov. 3, 2010). The court reviewed a portion of the withheld documents in camera and determined that the documents all dealt with the decision-making process and implementation of the bank’s decision to adopt an arbitration provision, topics the court found that in-house and outside counsel had been deeply involved in. Id. Some of the documents had been produced in redacted form, which the court considered a “good faith effort to disclose the business-related portions” of the documents. Id. at *6. The court noted that “although large groups of business people were, at times, parties to the communications, standing alone that fact does not undermine the privileged status of the documents or redacted material.” Id.The court observed that “[f]or the most part, where documents containing attorney opinions and legal advice were circulated to business people, the documents were marked privileged and confidential, thus creating the expectation that they should not be disseminated more widely.” Id. As to the training materials, the court determined that they had been authored by an attorney, had been sent to another attorney for revisions, and provided advice to “customer service representatives as to what the arbitration provision means and entails, and how to respond to customer questions about the arbitration provision.” Id. The court found these to be “materials for which a corporation would choose to rely upon an attorney’s advice and legal expertise,” and the court concluded that “[w]here interactions with customers can reasonably be expected to have legal consequences, advice from an attorney on how to respond to customer inquiries is legal advice.” Id.

*3 The PowerPoint at issue here is different from the training materials in Santer and Currency Conversion. Entergy does not claim the PowerPoint was created by an attorney. It does not even claim that the source material was created by an attorney. Hedging, it says the “source material” was “drafted, reviewed, and/or authorized by an attorney in ESI’s Legal Department.” In its corporate deposition, Entergy’s representative reported that Entergy had no policy with respect to retention of utility poles, but that instead there was “on-the-job training.” Entergy’s representative testified that Entergy’s Claims Department provides training to the supervisors, lineman, and lead teams and the information “gets filtered down from there.” It is unclear the breadth of circulation of the PowerPoint presentation.

The court has reviewed the PowerPoint presentation. The named presenter is Gloria Taylor from Claims Management-Liability. There is no indication she is an attorney. One of the slides includes a list of contacts. It does not appear any of these individuals are attorneys. The PowerPoint slides relevant to the present case (FITCH-ELL 262-263)[3] provide instructions on what to do in certain situations, including if a pole is hit. There is nothing on the presentation that indicates recipients or participants were instructed to maintain the information therein confidentially.

While the PowerPoint training may have been informed by Entergy’s in-house counsel, at least as to the slides relevant to the present issue, it is not clear that the training was a method by which Entergy’s counsel was confidentially providing legal advice to Entergy’s employees, again distinguishing this case from Santer and Currency Conversion. Entergy has not satisfied its burden to show that the PowerPoint is protected by the attorney-client privilege. However, the pages labeled FITCH-ELL 264-266 do not appear relevant to the issue of retention of the utility pole and are, therefore, not discoverable.

Entergy urges the court to look at the context in which the legal memorandum concerning retaining evidence at an accident site was created. It cites Exxon Mobil Corp. v. Hill, where the United States Fifth Circuit Court of Appeals held that a memorandum prepared by Exxon’s in-house counsel was protected by the attorney-client privilege. 751 F.3d 379, 380 (5th Cir. 2014). The memorandum in that case had been prepared by in-house counsel in response to a request for advice by an employee regarding how much of a confidential internal report to disclose to a party with which Exxon was negotiating a contract. Id. The Fifth Circuit underscored that “[c]ontext here is key.” Id. The court of appeals concluded that the context “strongly suggests that Exxon Mobil was approaching its in-house counsel for just the sort of lawyerly thing one would expect of an in-house lawyer: advice on transactional matters.” Id. at 382. The court of appeals added that the record was “devoid of any indication that [in-house counsel] was providing business advice divorced from its legal implications.” Id.

Here, Entergy has failed to provide the context necessary for this court to determine that the document is privileged. Entergy does not say that the memorandum was created by legal counsel in response to a request for specific legal advice regarding the retention of evidence at a specific accident site. It says the memorandum was created “in coordination with an attorney in the Legal Department.” It does not say who created it or when. Entergy represents that the document was not used as a training tool or disseminated beyond the Legal and Claims Departments. But it does not specify who received the document.

*4 The court has reviewed the document. It appears to be addressed to employees and contractors of the company and it describes the company’s duty to preserve documents, equipment, and other materials when litigation or a claim is pending or anticipated. It lays out the process such individuals should follow for collecting, tagging, and storing items. It advises the readers of the document to contact a Jennifer Creech with any questions. There is no indication that Jennifer Creech is an attorney. And, in light of the instructions to employees and contractors contained in the document, it is hard to believe this was a document of limited circulation. It is Entergy’s burden to establish the document is entitled to protection by the attorney-client privilege. It has failed to do so.

The work-product doctrine protects from discovery documents and tangible things “prepared by an attorney ‘acting for his client in anticipation of litigation.’ ” United States v. Nobles, 422 U.S. 225, 238 (1975) (quoting Hickman v. Taylor, 329 U.S. 495, 508 (1947)). Codified at Federal Rule of Civil Procedure 26(b)(3), the work-product protection extends to materials prepared by the party itself and representatives other than attorneys. “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. Campos, 20 F.3d 1171 (5th Cir. 1994) (quoting Nobles, 422 U.S. at 238) (alteration omitted). Thus, although a party may be ordered to produce work-product if the seeking 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,” the court “must protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of a party’s attorney or other representative concerning the litigation.” Fed. R. Civ. Proc. 26(b)(3)(A)-(B). Such materials are known as “opinion work product.”

The work product “privilege can apply where litigation is not imminent, ‘as long as the primary motivating purpose behind the creation of the document was to aid in possible future litigation.’ ” In re Kaiser Aluminum & Chem. Co., 214 F.3d 586, 593 (5th Cir. 2000) (quoting United States v. El Paso Co., 682 F.2d 530, 542 (5th Cir. 1982)). “[M]aterials assembled in the ordinary course of business,” are excluded from work-product materials. El Paso, 682 F.2d at 542.

Piatkowski v. Abdon Callais Offshore, L.L.C., No. CIV.A.99-3759, 2000 WL 1145825, at *2 (E.D. La. Aug. 11, 2000) (footnotes omitted). “[T]he burden of showing that documents were prepared in anticipation of litigation, and therefore, constitute work product, falls on the party seeking to protect the documents from discovery.” Id.

Here, in about two sentences of argument, Entergy asserts that the PowerPoint and legal memorandum are protected by the work-product doctrine. Entergy argues that the documents consist of legal theories, opinions, and conclusions of the ESI Legal Department and that the documents and/or source material were drafted, reviewed, and/or authorized by an attorney in ESI’s Legal Department. Entergy fails to explain how either of the documents were prepared in anticipation of litigation. It has not satisfied its burden to show the documents are protected by the work-product doctrine.

*5 Having found that the documents are not subject to the work-product or attorney client privileges, the Court does not address whether Entergy waived such privileges when their corporate representative reviewed the documents prior to his deposition.

Conclusion

For the foregoing reasons, the court finds the documents withheld by Entergy are not entitled to protection by the attorney client or work product privileges, provided that pages FITCH-ELL 264-266 are not relevant and are, therefore, not subject to disclosure. Accordingly, the Motion to Compel is GRANTED in part and DENIED in part. Entergy shall produce the PowerPoint (except pages FITCH-ELL 264-266) and the memorandum by Friday, February 15, 2019.

It is not clear if Entergy is referring to its own legal department or the legal department of Entergy Services, Inc.

ESI is not a defendant here.

Some of the other slides provide titles and contact information. These are discoverable because they provide context and might provide potential witnesses. Others of the slides concern different kinds of claims that are not related to the retention of the utility pole (e.g., what to do if an Entergy vehicle is in an accident).