*1 Before the Court is Plaintiff Asarco LLC's (“Asarco”) motion to quash or modify Defendant Atlantic Richfield Company's (“Atlantic Richfield”) subpoena to produce documents on the Montana Environmental Trust Group (“METG”). (Doc. 63.) Asarco argues that: (1) the subpoena is overbroad and unduly burdensome; (2) the subpoena covers documents protected by attorney-client privilege and the work-product doctrine; and (3) that it has not waived its privilege or work-product protection with respect to these documents.

Atlantic Richfield and co-defendant American Chemet Corporation (“American Chemet”) have each filed a response brief in opposition to the motion and Asarco has filed a reply brief in support. For the reasons discussed below, Asarco's motion to quash or modify the subpoena is denied.

Background

Asarco filed for Chapter 11 bankruptcy protection in 2005. The United States Bankruptcy Court for the Southern District of Texas approved and entered a consent degree that, inter alia, provided for METG's creation. METG was charged with all cleanup activities at four former Asarco locations in Montana, including the East Helena site (“Site”), which is the subject of the instant litigation. Asarco settled its CERCLA liability to the United States and fully funded METG, thus assuming the full cost of CERCLA-related liability at the Site. Asarco is currently seeking contribution and cost recovery from Atlantic Richfield and American Chemet pursuant to CERCLA Section 107(a).

On June 25, 2013 Atlantic Richfield subpoenaed METG ordering it to produce: “Any and all documents related to the East Helena Site that predate the Trust's formation pursuant to the Environmental Custodial Trust Agreement (November 2009), including but not limited to any documents or other items stored in the seven shipping containers on Manlove Street in East Helena, Montana.” (Doc. 65-7). The contents of these shipping containers are the subject of Asarco's motion to quash or amend.

Analysis

Relevance and Overbreadth

The Federal Rules of Civil Procedure empower parties to issue subpoenas directing nonparties to produce documents and other materials as part of the discovery process. Fed. R. Civ. P. 45(a)(1). This power, however, is tempered by the caveat that discovery is limited to materials that are nonprivileged and relevant to any party's claim or defense. Fed. R. Civ. P. 26(b)(1).

Asarco argues that the subpoena is overbroad and unduly burdensome because it covers documents that are not relevant because they do not relate to the actions of the parties at the Site. Specifically, Asarco points to its personnel, medical, and employment records, as well as to documents that belong to Hydrometrics, a company formerly owned by Asarco, all of which are located in the storage containers. This argument, however, is based on a flawed and incorrectly bifurcated reading of the subpoena.

In its subpoena Atlantic Richfield requests: “Any and all documents related to the East Helena Site ... including but not limited to any documents or other items stored in the seven shipping containers ....” The first clause establishes the scope of the subpoena: “all documents related to the Site,” which clearly—and by Asarco's own admission (doc. 64, 8)—are relevant. The second clause merely describes the location of potential documents that fall within the ambit of the first clause; it does not, as Asarco claims, request all of the documents held in the shipping containers, but only those that are related to the Site.

*2 Asarco argues that documents owned by Hydrometrics should be excluded from the scope of the subpoena because they are not relevant and are in the possession of a third party. The Court finds these arguments unconvincing.

Hydrometrics was formerly owned by Asarco. Atlantic Richfield claims that some of the Hydrometrics documents in the shipping containers relate to the Site. (Doc. 65, FN 2). If Atlantic Richfield is correct, such documents would certainly be relevant, and it is incumbent upon Asarco or Hydrometrics to demonstrate why they are protected or privileged per Federal Rule of Civil Procedure 45(d)(2).

Asarco fails to support its claim that the documents should be excluded because they belong to Hydrometrics, a third party, and this Court finds this assertion to be without merit. See Fed. R. Civ. P. 35(c). Hydrometrics documents that do not relate to the Site are beyond the scope of the subpoena, but absent sufficient justification for exclusion, those that pertain to the Site are relevant materials properly within the scope of the subpoena. Since the subpoena is entirely consistent with this finding, there is no need for this Court to modify it due to overbreadth related to the Hydrometrics documents.

The subpoena is limited to relevant documents related to the East Helena site. Because the subpoena does not cover irrelevant material that is outside the scope of discovery—including personnel, medical, and employment records, as well as Hydrometrics documents unrelated to the Site—there is no need for this Court to modify or quash the subpoena on the basis of overbreadth or irrelevance.

Attorney-Client Privilege and Work-Product Protection

Federal Rule of Civil Procedure 45(c)(3)(A)(iii) requires the Court to quash or modify a subpoena that “requires disclosure of privileged or other such protected matter, if no exception or waiver applies.” A party seeking to withhold subpoenaed information on the basis that it is privileged must produce a privilege log describing the withheld documents in a manner that will enable the parties to assess the claim. Fed. R. Civ. P. 45(d)(2); see also Fed. R. Civ. P. 26(b)(5)(A). The burden of persuasion in a motion to quash is on the moving party. Finley v. Pulcrano, 2008 WL 4500862 (N.D. Cal. Oct. 6, 2008).

Asarco argues that this Court should quash or modify the subpoena because it covers materials protected by the attorney-client privilege and the work-product doctrine.

The party asserting attorney-client privilege has the burden of establishing “the privileged nature of the communication.” United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009). In order to accomplish this, the asserting party must satisfy each element of the following eight-part test:

United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010) (citing Ruehle, 583 F.3d at 607).

The work-product doctrine, codified in Federal Rule of Civil Procedure 26(b)(3), shields from discovery “documents and tangible things that are [1] prepared in anticipation of litigation or for trial [2] by or for another party or its representative.” As with the attorney-client privilege, the party seeking to employ the work-product doctrine bears the burden of establishing its application. Moe v. System Transport, Inc., 270 F.R.D. 613, 625 (D. Mont. 2010).

*3 At the time it filed its motion to quash, Asarco had not provided this Court or the Defendants with a privilege log or any information regarding the documents in question, aside from the fact that the boxes containing these documents are marked with the names of various law firms that have represented Asarco, accompanied by several conclusory statements about the significance of that fact. While it is certainly possible that there is protected or privileged information contained in these boxes, the mere fact that a law firm's name is written on a box does not offer blanket protection for everything contained within: “The fact that a person is a lawyer does not make all communications with that person privileged.” Ruehle, 583 F.3d at 607 (citing United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002)). Without any information about the documents in question, this Court cannot grant the motion to quash or modify the subpoena based on the attorney-client privilege or the work-product doctrine.

Asarco has not satisfied its burden to describe the withheld documents in a privilege log as required by Federal Rules of Civil Procedure 45(d)(2)(A) and 26(b)(5)(A), nor has it established—or attempted to establish—that the disputed materials are subject to either the attorney-client privilege or work-product protection.

The Court declines to address the question of waiver since doing so is not required for the disposition of Asarco's motion.

Order

IT IS ORDERED that Asarco's motion to quash Atlantic Richfield Company's subpoena to produce documents on Montana Environmental Trust Group (doc. 63) is DENIED.

It is further ORDERED that the Montana Environmental Trust Group shall produce all relevant, non-privileged documents pertaining to the East Helena site contained in the seven shipping containers without delay, as directed by Atlantic Richfield's subpoena of June 25, 2013 and clarified by this Order.

If Asarco wishes to invoke attorney-client privilege or work product-protection for any of the relevant documents contained therein, it must produce a privilege log pursuant to Federal Rules of Civil Procedure 26(b)(5)(A) and 45(d)(2). This Court is sympathetic to the volume of documents contained within the shipping containers and the fact that some documents may be contaminated. However, there is merit in Atlantic Richfield's assertion that Asarco knew or should have known of the conditions of these documents and should have taken steps to decontaminate and prepare them contemporaneously with its filing suit to ensure that they would be available for discovery in a timely manner. At the very least, Asarco should have raised these complications at the preliminary pretrial conference.

The Court is aware that Asarco has agreed to provide the Defendants with a privilege log by August 30, 2013. (Doc. 70). However, not knowing the status of that privilege log, the Court will impose a deadline for its production in the interest of fair and timely discovery.

IT IS ORDERED that if Asarco fails to produce a privilege log by the telephonic status conference with Judge Christensen scheduled for Thursday, October 10, 2013 at 1:30 p.m., it will be deemed to have waived any privilege or protection as to all relevant documents pertaining to the East Helena site located in the seven shipping containers.

Dated this 20th day of September, 2013.